Opinion
Summary
Claiming violation of his statutory right to a speedy trial, Armando Bailón, Jr., moved to dismiss his misdemeanor case. The trial court denied the motion, and the appellate division of the superior court denied Bailón’s subsequent writ petition to that court challenging the trial court’s ruling. In this court, Bailón now seeks a writ of mandate directing the appellate division to vacate its prior order and directing that court to issue a new order compelling the trial court to dismiss the misdemeanor case against Bailón. We issued an order to show cause, and after considering the briefing and oral argument from Bailón and the People, we grant the writ petition.
Factual and Procedural Synopsis
Bailón was cited for a misdemeanor violation of Vehicle Code section 23152, subdivision (a), driving under the influence of drugs or аlcohol. On November 7, 2001, after he was appointed counsel and while he was free on his own recognizance, Bailón was arraigned and entered a not guilty plea. On November 21, Bailón “waive[d] statutory time,” but requested a trial date of December 14. On December 14 (“Day 00 of 10” according to the court’s minute order), Bailón appeared but the prosecutor did not, and trial was continued to December 21.
“The court: I think we have one judge here on Monday [Christmas Eve]. Any possibility we can start this on Wednesday?
“[Defense counsel (Patricia Hutton-Payton)]: Your Honor, Mr. Bailón would stipulate for last day being Wednesday.
“The court: Excellent.
“[Defense counsel]: That we could start trial on that date.”
“The court: That will be the 26th. All right. . . . Mr. Bailón, you have the right to have your trial start at the latest on Monday. Do you understand that right, give up that right, and agree that we can start this matter on Wednesday, the 26th?
“[Bailón]: Yes, sir.
“The court: Counsel join in the time waiver?
“[Defense counsel]: Yes.
“The court: All right. The matter will be set for trial as 10 of 10 on Wednesday, December 26th.” (Italics added.)
The court directed the clerk to call the jury room and order a panel for that date. The prosecutor said nothing.
On December 26, the court noted for the record that the matter was on calendar for trial “as 10 of 10.” The prosecutor (Richard Quinones) and defense counsel (Kenneth W. Jones) both аnnounced that they were ready to start trial. The court continued: “We have a problem that I discussed with both counsel in chambers. This matter was on calendar last Friday, as . . . day 7 of 10, which would have made the last day for trial Christmas Eve, December 24th. We were short judges on that date, and I asked Miss Hutton-Payton, who was standing in for you, Mr. Jones, on that date whether her client, Mr. Bailón, would agree to make today the last day by stipulation instead of December 24th.
Defense counsel (Jones) moved to dismiss the case and objected that “any continuance beyond today’s date . . . would violate Penal Code section 1382.”
The trial court ordered a jury panel for the following afternoon and, after explaining the North District’s “on call” pоlicy for the record, found good cause for a one-day continuance.
On December 27, Bailón (through Jones) argued his motion to dismiss. Noting that neither attorney present that day had been in court on December 21, defense counsel stated: “[I]n reading the minute order from December 21st, ... it appears that Miss Hutton-Payton was in court [on Bailon’s behalf], Mr. Heller was in court [on behalf of the People], and it was at that time agreed that—it was stipulated between the two parties that December 26 . . . would be day 10 of 10, or [the] last day, for trial on this matter. And I want to verify, first of all, that that is the court’s understanding and that is the People’s understanding of the case.
“[Defense counsel]: It is correct. And the People agreed with that also; is that correct, Mr. Quinones?
“Mr. Quinones [the prosecutor]: That is correct, Your Honor.
“[Defense counsel]: All right. Now, the next thing I want to ask: It’s the court’s belief that we did actually go beyond that time by continuing the case until today. We went beyond the time for trial.
“The court: That—the record is clear. [T]oday is the 27th, and we were unable to start the trial yesterday because of the absence of jurors ....
“[Defense counsel]: I’m making that record because that is what my Appellate Department wanted me to make prior to going into the motion. [U] Okay. Well, clearly what’s happened is the case has been continued, and then the question is whether or not there’s been good cause. . . .” (Italics added.)
The prosecutor and defense counsel then went on to argue at length whether the miscommunication between the court clerk and the jury assembly room staff constituted good cause for the one-day continuance. The trial court ultimately “reaffirm[ed]” its finding of good cause and denied Bailon’s motion to dismiss under section 1382.
.Defense counsel moved for a continuance in order to file a writ petition. Bailón first filed a petition in the appellate division of the superior court. In that petition, Bailón noted that the parties had stipulated that December 26 would be the “lаst day” he could be tried and that trial did not proceed on that day due to the miscommunication between court personnel. Because the miscommunication did not constitute good cause for a continuance, Bailón argued, his motion to dismiss for failure to bring him to trial within the time limits of section 1382 should have been granted.
On January 25, 2002, without requesting or receiving any opposition, the appellate division ruled as follows: “The petition is denied. The defendant
Later that month, Bailón filed his writ petition in this court. (Code Civ. Proc., § 904.1; see Baluyut v. Superior Court (1996)
We notified the parties that we were considering the issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984)
We then issued an order to show cause why the appellate division should not be compelled to grant Ballon’s request for relief. In response, the People filed a formal return, maintaining their initial position and further arguing that the 10-day grace period may never be waived in advance. Bailón filed an additional reply.
We first address the fact that the sole basis for the People’s contention that the trial court properly denied Ballon’s motion to dismiss (notwithstanding their concession that the trial court erred in finding good cause for a continuance) is the argument that December 26 was actually “day 0 of 10” under the Griffin case—a theory first raised by the аppellate division and never raised in the trial court. Generally, on appeal, a judgment or order will be affirmed if it is correct on any theory, regardless of the trial court’s reasons; thus, a respondent may assert a new theory to establish that an order was correct on that theory “unless doing so would unfairly prejudice appellant by depriving him or her of the opportunity to litigate an issue of fact.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2001) H 8:241, p. 8-117 (rev. #1 2000).) The same principles apply in this criminal writ proceeding.
To the extent the People’s new theory is premised upon its after-the-fact dispute as to whether the prosecutor agreed that December 26 was truly the last day on which Bailón could be tried, fairness considerations would preclude the People’s change of theory here because Bailón was not “reasonably put on notice to present all [his] evidence” as to this new theory; at most, we would remand the matter to allow Bailón to develop the record on this point. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, 8:240 to 8:240.1, pp. 8-116 to 8-117.) However, because the record compels our conclusion on this issue (as we will explain), we find that the facts are not “open tо controversy” and that Bailón will not be prejudiced by our consideration of the People’s theory. (Id. at H 8:240, p. 8-116 & H 8:241, p. 8-117 (rev. #1 2000).) Accordingly, we proceed to the merits.
The statutory time in which both felony and misdemeanor matters must be brought to trial is set forth in section 1382. As relevant here, in cases in which the defendant is charged with a misdemeanor and is also out of custody at the time of his arraignment or plea (whichever occurs later), the statute provides for dismissal if the defendant is not brought to trial within 45 days after his arraignment or plea, whichever occurs later, unless good cause is shown for the delay. (§ 1382, subd. (a)(3).) An exception applies when a defendant requests or consents to the setting of a trial date beyond that 45-day period. As the appellate division noted, “[wjhenever a case is set for trial beyond the . . . 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.” (§ 1382, subd. (a)(3)(B).)
Here, Bailón (while out of custody) was both arraigned and entered his plea to the misdemeanor charge against him on November 7, 2001. He later requested a trial date of December 14. The parties are in agreement that (prior to the continuance to December 26) the last date on which Bailón could be tried was December 24, in the absence of good cause or further consent.
In the People’s view (as the appellate division concluded), under section 1382 and Griffin, supra,
The Griffin and Medina Cases.
In Griffin (the case cited by the appellate division and now the People), the defense attorney announced that he and the prosecutor had agreed to
On November 21, the defendant in Griffin moved for dismissal since the 15-day trailing period he had agreed to had passed and he had not been brought to trial. The People argued that, under section 1382, they “ ‘ha[d an additional] 10 days beyond [November 20] ... the last date agreed upon by the defendant for trial. . . .’” (Griffin, supra, 235 Cal.App.3d at p. 1744.) Both sides agreed that the trial date was set for November 5. (Ibid.) The prosecutor conceded that if Griffin had not agreed to the additional 15 days beyond November 5, he would have to have been brought to trial within 10 days of November 5 (Nov. 15). (Id. at p. 1744, fn. 5.) Without contradiction from the prosecutor, defense counsel stated, “ ‘[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.’ ” (Id. at p. 1744.) The trial court granted the motion to dismiss the case, observing that, consistent with long-standing practice in the jurisdiction, the parties “inten[ded] and understood]” that the defendant and his counsel were agreeing to an additional 5 days beyond the 10 to which the People were afforded by section 1382, not to an additional 10 days on top of the 15 and that if the People maintained otherwise, the defendant, his counsel and the court were all “mislead” at the time the defendant’s waiver was taken, creating “ ‘an apparent estoppel situation.’ ” (Griffin, supra, 235 Cal.App.3d at pp. 1744-1745.)
However, as the Fourth District saw it, “the crucial question [was] the meaning of the term ‘the date so set for trial’ ” because “section 1382 uses the term ‘[the] date so set for trial’ as the trigger to the 10-day grace period.” (Griffin, supra, 235 Cal.App.3d at p. 1745.) “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, ‘[t]he date ... set for trial.’ ” (Ibid.) The court speculated that “this seemingly haphazard interchange occurred because the problem we confront here, where there is clearly a difference between the date set for trial (Nov. 5) and
Because of our Supreme Court’s comments in the case of Owens v. Superior Court, supra,
Nine years later, in Medina v. Superior Court (2000) 79 Cal.App ,4th 1280 [
When the defendant answered ready for trial on January 11, the People asked “to trail this to the last day,” indicating that they needed “the ten days.” The trial court continued the trial “until the last day—the last day, February 10th,” noting again, “That is our last day.” On February 10, citing the Griffin case as authority, the People asked the court to trail the matter to the following Monday (Feb. 14), arguing that when the defendant agreed to continue trial to January 31 with the explanation that he would have the right to be tried within 10 days of that day, he was actually consenting to a continuancе of his trial date to February 10 so the 10-day period set forth in
The trial court read Griffin and interpreted it as the People suggested despite the belief that the result was “not logical, made no sense, and ‘boggles the mind.’ ” (Medina, supra,
The Medina court commented: “Griffin did not address the validity of a stipulated continuance where the People also waive their right to the 10-day grace period and agree that the last day for trial can be 15, 20 or 30 days (or whatever date the People and defendant agree on) after the new date to which the trial is continued. There does not appear to be any reason why the People and defendant cannot both waive their interests protected by the 10-day grace period and stipulate to a last day that is truly a last day for trial. In the instant case, however, the People did not expressly waive their right to a 10-day grace period, so we do not have to reach this issue.” (Medina, supra,
Unlike the facts in Medina (and the discussion in Griffin), this case squarely presents the question whether the People may “waive their interests protected by the 10-day grace period and stipulate to a last day that is truly a last day for trial.” (Medina, supra,
The Purpose of Section 1382 and the Amendment to Include the 10-day Grace Period.
The People maintain that even if the prosecutor in this case agreed to set Decembеr 26 as the last day for trial, “that agreement is void” because,
First, as we have already discussed, the Griffin court did not consider whether the People could and did agree to modify the statutory grace period on the facts presented in that case. Further, as Bailón argues, very few statutes expressly provide for waiver of their protections, yet even constitutional rights may be waived. (And see People v. Haendiges (1983)
Instead, the “major consideration” in interpreting section 1382 must be the legislative purpose. (1 Witkin & Epstein, Cal. Criminal Law, supra, Introduction to Crimes, § 18, pp. 41-42; People v. Collins (1975)
Further, section 1050 states: “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time,” and “it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and for the defense, to expedite these proceedings to the greatеst degree that is consistent with the ends of justice.” (Italics added; and see Sykes v. Superior Court, supra,
In Owens v. Superior Court, supra,
“Pursuant to its constitutional mandate, the Judicial Council urged the Legislature to clarify these ambiguities in section 1382. It ‘recommended that the section be amended to provide for dismissal оf all cases not brought to trial within the statutory period (unless good cause is shown) except where the defendant has consented to the trial being set beyond the statutory period, and that in the latter situation the case must be dismissed if it is not brought to trial within 10 days after the last date to which the defendant consented. This will clarify the present rule by (a) establishing that dismissal under [s]ection 1382 may be had even though the defendant has previously consented to a delay beyond the statutory period, (b) fixing 10 days as a reasonable time for trial after expiration of the period consented to by the defendant, and (c) eliminating the possibility that delays attributable to a defendant which are wholly within the statutory period may prevent dismissal.’ ”
Because the fundamental purpose of section 1382 is to safeguard the defendant’s speedy trial rights and the Legislature added the 10-day grace
In the typical case in which the defendant agrees to a continuance оf trial beyond the time frame that is his statutory right under section 1382, the continuance is usually for more than one court day and, as the trial court in Griffin observed, “ ‘if it is a court continuance to a date that far off, we don’t know what our trial situation is.’ ” (Griffin, supra,
However, because the prosecutor may assess his or her readiness to proceed on the continued date and find that a shorter time is a “reasonable time” under the circumstances (where, for example, the prosecutor also wants a brief continuance and is already up against the last day for trial, and the defendant is only willing to continue the matter if the next court day is the last day on which he may be tried, as in this case), we see nothing to prevent the prosecutor from agreeing to a date less than 10 days after the continued trial date.
The “Stipulation.”
Having determined that the prosecution may agree to a true last day for trial and waive the 10-day grace period of section 1382, we now consider whether, in this case, the prosecution did agree to December 26 as the true last day for trial, waiving the statutory grace period.
The record of the proceedings on December 21 reveals the following: Both sides understood that Monday, December 24—a single day before the Christmas holiday—was the last day on which Bailón could be tried. Before the matter was heard that day, the prosecutor said, he had spoken with Ballon’s counsel in an effort to avoid beginning trial on that date. Noting that only one judge would even be present on that date, the court pressed Bailón whether there was any way that matter could “start” on Wednesday, December 26. Bailón (through his counsel) explicitly stated that he would agree to that date as the “last day” the prosecution could “start trial.” The court obtained Ballon’s waiver of his fundamental right to have his trial start
The People suggest that the trial court alone wanted the continuance in order to take off Christmas Eve and assert that “[f]ew prosecutors would have the temerity to interfere with the trial court’s discussion with the defendant on that point at that time of year.” Not only does the record reveal that the prosecutor sought to avoid proceeding on Christmas Eve, but we reject the contention that the prosecutor’s silence (whatever his reasons) under these circumstances necessarily constitutes anything less than acquiescence and implied consent to make December 26 the “last day” to try Bailón, without benefit of the statutory grace period.
Notably, “if the defendant intends to stand upon his right to a trial within the [statutory] period he must take some action to inform the court that he does not waive his right. Failure to object is the equivalent of consent.” (People v. O’Leary (1955)
In this case, it is abundantly clear from the record that on December 21, when this matter was put over to December 26, both parties agreed to that date (Dec. 26) as the “last day” on which Bailón could be tried. With trial set for the following Monday, December 24 (as day 10 of 10 or 45 of 45), the People were already in the position of having to start trial on the true last day for trial (also Christmas Eve) and had already sought Bailón’s consent to continue the matter but he had not agreed. Bailón had been “ready from the beginning.” In response to the court’s further request to put the matter over
Subsequent proceedings only serve to emphasize this point. On December 26, when both sides knew that there were no jurors to try the case, the court again recounted for the record what had occurred on December 21, specifying repeatedly that December 26 was “10 of 10” and the “last day” Bailón could be tried. The People (through a different prosecutor) again said nothing about the procеdural posture of the case, arguing only that the juror problem constituted good cause for the continuance. On December 27, at the time Bailón argued his motion to dismiss, the prosecutor specifically represented on the People’s behalf that Bailón had only “waiv[edj a day,” and that the People had agreed to December 26 not only as the continued date, but as the “last day” on which Bailón could be tried. Even in the face of defense counsel’s plain statement that he was making a record on the point for the purpose of appellate review if necessary, there was never any expression of uncertainty, equivocation or request for time to communicate with the prosecutor who had appeared on December 21 (when the triаl was put over to December 26) to inquire further. The prosecutor again argued only that the clerical miscommunication constituted good cause.
Because we conclude that the People could and did agree that December 26 was the last day for trial, we need not address Ballon’s further contention that, if the stipulation was unenforceable, his consent to delay trial on the basis of such an agreement was itself invalid. Suffice it to say that it is clear the trial court obtained Ballon’s waiver of his speedy trial rights subject to the qualification that December 26 would be the last day on which he could be tried, and, as they concede, the People stood “mute” (and later “affirmatively agreed” that the People had joinеd in this stipulation at the time it was made, yet dispute the point for the first time in this court). “This type of manipulation of procedural rules for adversarial advantage should be avoided in our legal system. And a rule which would encourage this sort of dissembling and brinksmanship should not be promulgated by this court.” (Owens v. Superior Court, supra,
Disposition
The petition is granted. Let a peremptory writ issue directing the appellate division of the superior court to vacate its order of January 25, 2002, and to
Lillie, P. J., and Perluss, J., concurred.
A petition for a rehearing was denied June 27, 2002, and the opinion was modified to read as printed above.
Notes
All undesignated statutory references are to this code.
The trial court stated: “We don’t have a pool of jurors available on any given day because on most days we don’t have a trial that’s starting, ft] What we do is we have jurors calling after [4:00] on the night before we might need jurors. If we need jurors for the following day, like tomorrow, we’ll put a recording on a message machine telling jurors to come in for a particular trial. So if we have not ordered jurors by the night before at [4:00], we’ll have no jurors available to begin the trial, ft] We found out. . . probably about [2:00] this afternoon . . . that there was absolutely no one available. [N]o jurors had been summoned for today’s date because [the jury assembly room] did not believe there were any trials that were set to start today[;] they had 40 that they were planning on ordering for the 2nd, so there was no way for us to get jurors for today.”
In terms of the nature and scope of review, thе function of an appellate court is substantially the same in civil and criminal appeals. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 140, p. 387; Eisenberg et al., Cal. Practice Guide; Civil Appeals and Writs, supra, ^ 15:23, p. 15-14 [incorporating sections discussing the limitations on the scope of appellate review (such as the one noted in the foregoing quotation) into the chapter on writs]; and see id. at f 15:24, p. 15-15 [statutes and rules on appeal are generally applicable to writ review unless inconsistent with specific writ statutes or rules].)
The 45th day after Bailón’s November 7 arraignment and plea was actually December 22, but because that day was a Saturday, the following Monday (Dec. 24) was the last day for trial under section 1382. (Owens v. Superior Court, supra,
Indeed, the facts in Medina illustrate the unsoundness of thе People’s position that, under section 1382, they always have another 10 days from the “last day to which the defendant has agreed.” Applied to the facts in Medina, this construction would have meant that “every time a court advised a defendant of his speedy trial rights and the effect of a time waiver, including the automatic 10-day trailing period, the defendant would find that he was actually facing not only the 10-day trailing period he agreed to but another 10-day time period automatically tacked on as well. [I]f the trial court in fairness advised a defendant of this ‘additional’ 10-day period when it took the time waiver, there would be yet another 10-day period added on since the defendant would be deemed to have ‘agreed’ to trial within the trailing periods, thereby extending the agreed upon trial date.” (Medina, supra, 79 Cal.App.4th at p. 1289.)
Without citation to any authority, the People also say that the “only way the ten days can be waived is for the People to announce ready for trial during the 10-day period. The People did not announce ready on December 26, 2001.” The record is to the contrary, and we reject this unexplained and unsupported point.
Since the eventual amendment adopted verbatim the language proposed by the Judicial Council, the Judicial Council’s explanation of its recommendation is entitled to great weight. (Owens v. Superior Court, supra,
The People’s reliance on Peoplev. Superior Court (Alexander) (1995)
To the extent the Griffin case can be read to hold simply that the 10-day period that arises by operation of law under section 1382 “cannot be unilaterally waived by a defendant” (see Medina, supra, 79 Cal.App.4th at pp. 1286-1287), we have no quarrel with it. However, to the extent it can be read (and was read by the appellate division in this case) to say that the People may not validly stipulate to a date-specific continuance as the “last day” (here, one day) and thereby waive their right to the 10-day period of section 1382, we must respectfully disagree for the reasons stated in the text.