Pogosyan v. Appellate Div. of the Superior Court of L. A. Cnty.

• Decision Date: 05 September 2018
• Docket Number: No. B288362,B288362
• Citation: 26 Cal.App.5th 1028,237 Cal.Rptr.3d 630
• Court: California Court of Appeals Court of Appeals
• Parties: Alexander POGOSYAN, Petitioner, v. APPELLATE DIVISION OF the SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

26 Cal.App.5th 1028

237 Cal.Rptr.3d 630

Alexander POGOSYAN, Petitioner,

v. APPELLATE DIVISION OF the SUPERIOR COURT of Los Angeles County, Respondent;The People, Real Party in Interest.

No. B288362

Court of Appeal, Second District, Division 4, California.

Filed September 5, 2018

Law Office of the Los Angeles County Public Defender, Nicole Davis Tinkham, Albert J. Menaster, Los Angeles, Josefina Frausto and Dylan Ford for Petitioner.

No appearance for Respondent.

Jackie Lacey, District Attorney of Los Angeles County, Phyllis C. Asayama and Felicia N. Shu, Deputy District Attorneys, for Real Party in Interest.

WILLHITE, J.

A defendant charged with a misdemeanor has a right under Penal Code ¹ section 1382 to be brought to trial within 45 days after arraignment if the defendant is not in custody at that time.² ( § 1382, subd. (a)(3).) If, however, the defendant requests or consents to the setting of a trial date after that 45-day period, the defendant must be brought to trial "on the date set for trial or within 10 days thereafter." ( § 1382, subd. (a)(3)(B).) If the defendant is not brought to trial within those time periods, the case against the defendant must be dismissed unless good cause for the delay is shown. ( § 1382, subd. (a).)

In this case, petitioner Alexander Pogosyan consented to the setting of a trial date for the misdemeanor case against him on a date beyond the 45-day period. He moved to dismiss the case after the trial court, at the prosecution's request, continued the matter to a date more than 10 days after the date set for trial. The trial court denied his motion to dismiss, and the Appellate Division of the Superior Court of Los Angeles County (Appellate Division) denied his subsequent writ petition on the ground that the 10-day "grace period" under section 1382, subdivision (a)(3)(B) did not begin to run on the date set for trial because Pogosyan did not announce ready for trial on that date.

Pogosyan petitioned in this court for a writ of mandate directing the Appellate Division to vacate its ruling and to direct the trial court to dismiss the case against him. We summarily denied the petition, and Pogosyan petitioned the California Supreme Court for review. The Supreme Court granted review and transferred the matter to this court, directing us to vacate our order denying the writ petition and to order the Los Angeles Superior Court to show cause why Pogosyan's motion to dismiss should not be granted. We issued the order to show cause, and have received the return to the petition filed by real party in interest, People of the State of California, and Pogosyan's reply.

One of the issues we are asked to address in this case is an issue that has arisen from language in several cases—including one by our Supreme Court—stating that the 10-day grace period does not begin to run until the defendant "announces" ready for trial. We conclude that the language in each of those cases requiring the announcement of ready for trial was dictum, in that the defense counsel in each of those cases had made such an announcement. Rather, based upon the reasoning of those cases we conclude that what is required is that the record reflect the defendant's actual readiness for immediate trial, regardless whether an explicit announcement of readiness is made.

In the present case, Pogosyan's attorney was not asked whether she was ready for immediate trial, and did not expressly declare her readiness. However, her comments as reflected in the transcript of the proceedings held on the date set for trial indicate that she was, in fact, ready for immediate trial; indeed, the record shows that both the prosecution and the trial court understood that the 10-day grace period had begun, and thus good cause was necessary to grant a continuance to a date beyond that period. Therefore, we grant Pogosyan's writ petition and issue a writ of mandate directing the Appellate Division of the superior court to vacate its order denying Pogosyan's petition and to order the trial court to dismiss the case against him.

BACKGROUND

On May 16, 2017,³ the People filed a misdemeanor complaint charging Pogosyan with one count of driving under the influence of a drug (DUI) within 10 years of another DUI offense ( Veh. Code, §§ 23152, subd. (f), 23540 ). Arraignment was scheduled for May 18, but Pogosyan failed to appear and a bench warrant was issued.

On August 28, Pogosyan appeared in custody on the warrant and was arraigned; he waived his right to counsel and pleaded not guilty. A pretrial hearing was scheduled for September 13, and Pogosyan was remanded to custody.

Pogosyan appeared, not in custody and representing himself, at the pretrial hearing held on September 13. He asked the prosecutor to dismiss the case due to an improper seal on his blood test. The prosecutor stated that he would need time to assess Pogosyan's assertion. The trial court then advised Pogosyan that he had a right to go to trial within 30 days of his arraignment, and that September 13 was day 16 of 30. The court told him that he could keep that time limit, but if he wanted to give the prosecutor time to look at the evidence and evaluate his assertion regarding the blood test, he could agree to go beyond the 30 days. Pogosyan replied that he did not have a problem if the prosecutor wanted to go past the 30 days, but he asked what the date of the trial would be. The court asked both sides if November 15 was a good date for the continuance. The prosecutor said that it was, but Pogosyan asked if it could be sooner; when the court offered November 8, Pogosyan decided that he preferred November 15. The court then took Pogosyan's time waiver as follows:

"THE COURT: Now, you have a right to go to trial within 30 days, as I indicated, from your arraignment and plead not guilty in this case. Today is day 16 of 30. To go over to that date [i.e., November 15], you have to waive time, speedy trial time. Do you waive that?

"[POGOSYAN]: Yes, I do. I waive that right.

"THE COURT: Okay. So this will be [November 15] for a new zero of 45 date. You are ordered back at 8:30 a.m.[,] Division 3 for a zero of 45. And the People will take a look at the results of what you indicated and we'll see where we stand on that date. Okay?

"[POGOSYAN]: Sounds good."

Forty-five days from November 15 was December 30, a Saturday, making the last day of the 45-day period January 2, 2018, the next court day after the New Year's Day holiday.

On November 15, Pogosyan appeared and requested counsel. The public defender was appointed to represent him, and the matter was continued to December 5 for a pretrial hearing.

At the December 5 pretrial hearing, defense counsel informed the trial court that her office had received discovery on the case that day, but she did not see a digital audio recording she had requested. She asked that the court order the People to turn over all the requested discovery that day. The prosecutor told the court that she would be in court all day, so she could not guarantee that it could be done that day, but she assured the court that it would be "done forthwith." The court directed the prosecutor to "follow up on that immediately," and set a "discovery compliance progress" date of December 8 to ensure that defense counsel received the discovery. Defense counsel also asked the court to "trail the matter to the zero of ten." The court agreed, and set a trial date of December 20, noting that that date would be zero of 10 and that "last day is still [January 2, 2018]."⁴ The prosecutor did not object to setting a trial date as zero of 10, with the last day for trial being January 2, 2018.

On December 8, the trial court called the case for discovery compliance, without appearances by either side, and took the matter off calendar.

On December 19, the day before the scheduled trial date, the People filed a motion to continue the trial under section 1050. The People argued there was good cause to continue, and supported the motion with a short declaration by the prosecutor assigned to the case. The declaration simply stated that prosecution witness Officer Joshua Luna was unavailable, and was expected to become available after January 4, 2018.

The next day, December 20, the case was called for trial, with Pogosyan appearing by counsel under section 977, subdivision (a). The trial court (Judge Beverly L. Bourne, presiding) did not ask whether the parties were ready for trial. Instead, the court noted that the People had filed a motion to continue and asked if either side wanted to be heard on it. Defense counsel argued that the motion was untimely because it was filed the day before the date set for trial, and it was inadequate because the prosecutor failed to show that Officer Luna had been subpoenaed. Counsel also noted that even if the prosecution had shown due diligence in securing the attendance of Officer Luna through a subpoena, the case probably would not be sent out for trial until December 28, jury selection would not begin until December 29, and the prosecution could call other witnesses first to fill the time until Officer Luna became available on January 4, 2018.⁵

In arguing that good cause existed for the continuance beyond the 10th day, the prosecutor responded that Officer Luna was her primary witness, because he was the officer who wrote the report in the case and conducted the entire investigation, and therefore he would be her first witness; she asked for a seven of 10 date of January 8, 2018. When asked whether Officer Luna had been subpoenaed, the prosecutor responded that "he was not subpoenaed for the zero of ten. I went to subpoena him for the seven of ten date, which would have been December 27th.

And in doing so, that's when I learned that he's out of town next week until the 4th."⁶

Defense counsel argued that Officer Luna should have been subpoenaed for that day, the date set for trial, and there was no good cause for the continuance, but if the trial court was going to grant the...