People v. Griffin

• Decision Date: 20 November 1991
• Citation: 1 Cal.Rptr.2d 620,235 Cal.App.3d 1740
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee GRIFFIN, Defendant and Respondent. E009066.

Page 620

1 Cal.Rptr.2d 620

235 Cal.App.3d 1740

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee GRIFFIN, Defendant and Respondent.

E009066.

Court of Appeal, Fourth District, Division 2, California.

Nov. 20, 1991.

As Modified on Denial of Rehearing

Dec. 19, 1991.

Review Denied Feb. 13, 1992.

[235 Cal.App.3d 1741] Dennis Kottmeier, Dist. Atty. and Joseph A. Burns, Deputy Dist. Atty., for plaintiff and appellant.

Mark L. Christiansen, Sacramento, under appointment by the Court of Appeal, for defendant and respondent.

OPINION

RAMIREZ, Presiding Justice.

The People appeal from the pretrial dismissal of this case, in which Robert Lee Griffin was charged with the 1980 murder of one of his fellow prison inmates at Chino's California Institution for Men.

Griffin was first tried and convicted for the killing several years ago, but this court reversed his first degree murder conviction due to jury instruction error. He was tried a second time and convicted as before, and we once again reversed his conviction, this time for improper admission of evidence at trial. We noted in our opinion as to this trial that "... [T]he majority of witnesses testifying ... were fellow inmates of Griffin and the victim[, including the now infamous Leslie Vernon White, one of the chief prosecution witnesses. ¹ ] The air at trial was thick with accusations and insinuations of lack of credibility, favors in exchange for testimony, and gang affiliations." After our reversal of the second verdict, proceedings were begun a third time, but were terminated by the trial court's dismissal order. The People here contend that that order was improper. We agree and reverse.

FACTS

When Griffin was first tried, he was charged with the enhancement that he personally used a knife during the stabbing murder of the victim. Griffin's first jury found that allegation to be not true. Therefore, when he was tried a second time, the People proceeded on an aiding-and-abetting theory. In our opinion reversing the second conviction, we advised the trial court, in the event of another retrial, to avoid admitting evidence inconsistent with the first jury's negative finding on the enhancement allegation in light of the split of authority on the subject. ²

Accordingly, during pretrial proceedings for this third go-round, ³ Griffin made a motion to prevent the People from introducing evidence that he was the one who stabbed the victim. Four days later, the parties were before the court when the following colloquy occurred:

"The court: ... [W]hat were you going to do about the trial?

"[Defense counsel]: Your honor, ... [the prosecutor] and I have agreed ... to continue the matter for trial assignment to November 2, trial to commence November 5. [p] Mr. Griff[i]n ... is aware of the fact that he has a right to be brought to trial within 60 days of the filing of the [remittitur] and is agreeable to waive that statutory time. [p] [To Griffin:] Is that correct?

"[Griffin]: Yes, sir, it is.

"The court: What about some days beyond, or have we been doing that in this case? Usually if it is a court continuance to a date that far off, we don't know what our trial situation is. [p] I note there have been some waivers to a date plus 15 days. Would he be willing to waive 15 beyond that date?

"[Defense counsel]: Fifteen calendar days.

"The court: All right.

"[Griffin]: Yes, sir.

"The court: ... [W]e will then note for good cause, matter being reset for ... November 2 ... trial assignment, and trial November 5...." (Emphasis added.)

Thereafter, the trial court granted Griffin's motion to prevent the prosecution from introducing evidence that he was the stabber, adding, "[A]t retrial[,] the [P]eople will be limited to guilt based on 'aiding and abetting' rather than 'stabber.' " Three weeks later, Griffin filed an "On Going Request for Evidentiary Suppression of Facts Showing Defendant to be the Actual Perpetrator of the Stabbing Death of the Victim." Thereafter, the People filed points and authorities in opposition to Griffin's "On Going Request ..." and, therein, sought "specification of exactly what evidence is encompassed by the [c]ourt's exclusionary order." That clarification was made by the court on October 9, and an order setting it forth was filed the following day. On October 16, during a status conference, the trial court was informed that the People would be seeking a writ at this court. Although the minute order for that date does not specify which ruling was to be the subject of the writ petition, it is clear that the People were intending to challenge the trial court's orders regarding the evidence that Griffin was the actual stabber. Despite being informed of the People's intention to pursue a writ with this court, the minute order for October 16 indicates that "the trial dates of 11-2-90 and 11-5-90 are confirmed." (Emphasis added.)

The People's petition for writ of mandate/prohibition challenging the trial court's evidentiary rulings was filed with this court on November 9, 1990. We denied the petition on November 14. ⁴

On November 21, Griffin moved for dismissal on the grounds that the last day during which trial could have commenced by agreement of the parties, November 20, had passed. The People argued that "under [Penal Code section] 1382 ... we ... ha[d] ten days beyond [November 20] ... the last date agreed upon by the defendant for trial.... [T]he statute is relied upon by the People in the filing of the writ." During colloquy following the parties' presentations of their conflicting views, both defense counsel and the prosecutor agreed that "the trial date was November the 5th [.]" (Emphasis added.) ⁵ Defense counsel stated, without contradiction by the prosecutor that, "[I]t has been my experience in this courthouse, in this jurisdiction, that additional time waivers beyond the ten days [provided by section 1382] incorporate and include the ten days.

The trial court, in apparent agreement, said in granting Griffin's motion to dismiss:

"... [I]t has been the practice in all of the departments in the West District that I am familiar with handling criminal cases and [it] may well be a countywide policy, that when we seek waivers of times from defendants for trial, that we select a date and then we seek to get an additional period of time, either 30 days, if a defendant is in custody, or 60 days, if a defendant is not in custody, to give the People more time to get the case out for trial than is afforded by the statute.... [Griffin] agreed to a commencement of trial 15 calendar days beyond November the 5th which meant that the trial could have commenced on or before November 20, which was yesterday. [p] ... [I]t is my distinct impression based on the practice that has existed in this jurisdiction for a long period of time that it was the intention and understanding of the parties that the defendant and his counsel were not agreeing to an additional 10-day period after the 15 days but rather were agreeing to an additional five days over and above the ten days to which the People would have been entitled ... under the statutory provision. [p] ... [I]f the People are insisting now that they have an additional 10-day period beyond November 20, that not only w[ere] the defendant and his counsel misle[ ]d, but also this court and probably [the] judge ... at the time that the waiver was taken.... And, therefore, on that basis this court determines that this court has no alternative but to grant the defendant's motion for dismissal pursuant to the provision of 1382, subsection b, and also the practice that has existed in this jurisdiction for some period of time which in my judgment has caused an apparent estoppel situation."

DISCUSSION

Penal Code Section 1382, subdivision (b), provides in pertinent part: "... [A]n action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant ... and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter." (Emphasis added.) The crucial question is the meaning of the term "the date so set for trial."

At the hearing on the motion to dismiss below, the prosecutor conceded, in two different ways, ⁶ that the date set for trial was November 5 and not November 20. By backward reasoning from a concession in the People's briefs on appeal, they still take that same position. ⁷

Penal Code section 1382 uses the term "[the] date ... set for trial" as the trigger to the 10-day grace period. Clearly, November 5 was the "date ... set for trial" here. The problem arises in the interchangeable use over the years by the cases construing section 1382 of the term "the last day to which defendant may have consented [for trial]," or "the latest trial date to which he consented" with the pivotal phrase, "[the] date ... set for trial." Perhaps this seemingly haphazard interchange occurred because the problem we confront here, where there is clearly a difference between the date set for trial (November 5) and the last day to which the defendant consented for trial (November 20) was never anticipated.

Before it was amended in 1959, Penal Code section 1382 provided, "The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: [p] 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within 60 days...." There was no 10-day grace period, therefore, defendants whose trials did not commence within the 60 days could obtain a dismissal on day 61.

In Ray v. Superior Court (1929) 208 Cal. 357, 358, 281 P. 391, where defense counsel consented to a resetting of the trial date beyond the 60 days, the Supreme Court held that "[t]he consent of a defendant that his trial ... be set for a date beyond the sixty-day limit ... is equivalent to a postponement upon his application within the meaning of...