Perryman v. Superior Court

• Decision Date: 24 July 2006
• Docket Number: No. B187161.,No. B187073.,B187073.,B187161.
• Citation: 46 Cal.Rptr.3d 306,141 Cal.App.4th 767
• Court: California Court of Appeals Court of Appeals
• Parties: Stanley Bernard PERRYMAN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; People of the State of California, Real Party in Interest. Nicole Evyette Gaston, Petitioner, v. The Superior Court of Los Angeles County, Respondent; People of the State of California, Real Party in Interest.

46 Cal.Rptr.3d 306

141 Cal.App.4th 767

Stanley Bernard PERRYMAN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

People of the State of California, Real Party in Interest.

Nicole Evyette Gaston, Petitioner, v. The Superior Court of Los Angeles County, Respondent;

People of the State of California, Real Party in Interest.

No. B187073.

No. B187161.

Court of Appeal, Second District, Division 1.

July 24, 2006.

Michael P. Judge, Public Defender, Marie Lui and John Hamilton Scott, Deputy Public Defenders for Petitioner Stanley Bernard Perryman.

Janice Y. Fukai, Alternate Public Defender, Michael Goodman and Yvonne Velasquez, Deputy Alternate Public Defenders, for Petitioner Nicole Evyette Gaston.

No appearance for Respondent.

Steve Cooley, District Attorney, Phyllis Asayama and Roberta Schwartz, Deputy

[46 Cal.Rptr.3d 307]

District Attorneys, for Real Party in Interest.

ROTHSCHILD, J.

In this case, we hold that defendants' successful motion to quash a jury venire and begin jury selection again with a new panel of prospective jurors was not a "mistrial" motion, despite the defendants' initially having labeled it as such, and, because the prosecution was not prejudiced, it did not trigger a new period in which defendants could be "brought to trial" under Penal Code section 1382, subdivision (a)(2).¹

FACTS

An Information filed August 11, 2005, charged Stanley Perryman and Nicole Gaston with selling cocaine base (count 1), and Perryman with possessing cocaine base for sale (count 2), on April 14, 2005. (Health & Saf.Code, §§ 11352, subd. (a); 11351.5.) The Information also alleged that each defendant had several prior felony convictions.

On August 11, 2005, Perryman and Gaston were arraigned and pled not guilty. The sixtieth day following August 11 was October 10 (a holiday), requiring that Perryman and Gaston be brought to trial no later than October 11. Trial was calendared for Thursday, October 6.

On October 6, Judge James Pierce, to whose courtroom the case was assigned after being transferred that morning from another department, called the case for trial, a panel of prospective jurors was sworn, and jury selection commenced. During questioning, however, one prospective juror stated: "I may have seen [Perryman] before when I was buying marijuana." Without opposition from the prosecutor, both defendants' counsel moved for a "mistrial." The court granted the motion and dismissed the entire panel.

Immediately thereafter, when the court asked the parties how they wanted to proceed, Perryman's counsel stated: "I would like us to start picking a jury, call up to the jury room." The prosecutor responded: "When a mistrial is granted, ... it becomes zero of 60 [days]. I would request that we trail the matter until closer to the 60th day." When Judge Pierce preliminarily agreed with the prosecutor, Perryman's counsel protested that she wanted to resume jury selection with a new panel that day, arguing that the dismissal of the panel before the trial jury was sworn was not a "mistrial." The court granted the parties a 15-minute recess to research the issue.

After the recess, Perryman's counsel clarified her position (in which Gaston joined), stating that the court legally could not grant a mistrial before jeopardy attached, which had not occurred because the venire was dismissed before a trial jury was sworn, and thus that the defense motion should have been to quash the jury venire. Counsel acknowledged that she had misspoken in seeking a mistrial ("I called a banana an apple[ ]") but argued that dismissing the venire did not legally constitute a mistrial, and that defendants still had to be brought to trial on or before October 11 to satisfy their speedy trial rights, which defendants never had waived. The prosecutor agreed that jeopardy did not attach until a trial jury was sworn but argued that beginning jury selection complied with section 1382, and that thereafter, once a "mistrial" was granted, a new 60-day period began within which the case could be tried. The court made no ruling and trailed the case until the next day, October 7, for further briefing and argument, stating: "So tomorrow will either be 57 of 60 [days], or it will be one of 60, depending on the . . . ruling."

At the October 7 hearing, Judge Pierce stated that the parties had spent over half of the previous day in jury selection before the jury was dismissed shortly after 3:00 p.m. Perryman's counsel stated without contradiction that both defendants, who were in custody, had never waived their speedy trial rights, and that, despite the defense being ready for trial, the case had been dismissed before on an earlier trial date on the People's motion "based on inconvenience to them[,]" after which the prosecution refiled the case.² The parties agreed that on the afternoon of October 5, when the current prosecutor received the case, she learned that a purportedly necessary witness would be going on vacation out of the country from October 7 until October 18, and that the witness was in court on October 6 and was available to testify until sometime in the morning of October 7. Before the court ruled on defendants' request to re-label their motion, the prosecutor excused her witness without requesting that the court order him to return on any later day.³

Judge Pierce ruled that the motion to dismiss the venire was a motion to quash and not a motion for mistrial because jeopardy had not attached, and that a new 60 day period in which to bring the defendants to trial did not commence, but he continued the case for 10 days to October 17 because he apparently believed that the prosecution had shown good cause for a continuance. The court believed that October 7 began a new 10-day period in which the case would have to be tried, thus allowing 20 additional days before defendants would have to be brought to trial.⁴ The judge set the matter for October 12 to permit the defendants to make a timely motion to dismiss the case, and on that date he denied the motion.

On October 17, the date set for trial, the parties appeared before Judge Gary Ferrari, who had presided over the case before its October 6 transfer to Judge Pierce. The defendants stated that they were ready for trial, but the prosecutor stated that her witness would not be available until the next day. Over the defendants' objection, Judge Ferrari trailed the case to October 20, which he categorized as the third day of a new 10-day period.

On October 20, the parties again appeared before Judge Pierce. Defendants again moved to dismiss, arguing that even if good cause justified a continuance until the prosecution witness's return, that new date, October 17, was the last day on which trial could commence, rather than the first day of a 10-day trial period, as would be the case if the defense agreed to the continuance. Judge Pierce denied the motion to dismiss and stated that he considered October 27 the last day on which trial could commence. Thereafter the parties agreed to continue the case to permit defendants to file these petitions. We issued an order to show cause.

DISCUSSION

Defendants contend that the trial court violated their statutory speedy trial rights under section 1382 by continuing the trial past October 11 despite their refusal to waive those rights. They argue that, as Judge Pierce found, their successful motion to dismiss the jury venire on October 6, although initially labeled as a motion for a "mistrial," could not have been such a motion because a mistrial cannot be granted before jeopardy attaches when the trial jury is sworn. They point out that the prosecutor did not argue or prove that good cause justified a continuance beyond October 11, and that even if good cause justified the continuance to October 17, it did not justify any delay beyond that date, and thus that the trial court erred in not dismissing their case. In response, the People argue that granting defendants' "mistrial" motion triggered a new 60-day period within which the case could be tried, particularly because they detrimentally relied on that ruling in excusing their witness. The People also argue that but for defendants' "precipitous[]" mistrial motion on October 6 and the writ petition, defendants' trial "would already have occurred[,]" suggesting that defendants' own acts necessitated continuing the case beyond October 11. We agree with defendants.

A.

We must decide the correct characterization of a motion to dismiss a panel of prospective jurors, specifically whether bringing defendants to trial before a new panel of prospective jurors would constitute "bringing them to trial" again, rather than "trying them again" under section 1382. If the former, as defendants argue, then their successful motion to dismiss the jury venire was not a "mistrial" motion, did not trigger a new 60-day period in which they had to be brought to trial, and required the court to "bring them to trial" no later than October 11. If the latter, as the People argue, then defendants' motion properly was for a mistrial, did trigger a new 60-day period, and permitted the court to continue the case to any date within 60 days of October 6, making any of the dates to which the case was continued timely.

As relevant, section 1382, subdivision (a)(2), states: "(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶] . . . . [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an . . . information, . . . or, in case the cause is to be tried again following a mistrial, ... within 60 days after the mistrial has been declared . . . ." (Italics added.) Section 1382 was enacted to implement the constitutional right to a speedy trial. If a defendant is not "brought to trial" within the time prescribed in section 1382 and, as here, before trial challenges such failure, he is...