In November 2016, the trial court granted Bilbrey's petition for a writ of habeas corpus, based upon the ineffectiveness of trial counsel, and ordered a new trial. The
After filing the appeal, the People did not seek to set a trial date or bring the case to trial. Nor did they seek a stay of trial court proceedings. In March 2017, Bilbrey filed a motion to dismiss the information for violation of his speedy trial rights under section 1382. The People opposed, arguing their pending appeal in case A150273 deprived the trial court of jurisdiction to rule on that motion. The trial court granted the motion to dismiss on March 22, 2017. The People filed a timely notice of appeal from the order of dismissal (A151401). In response to the People's subsequent petition for writ of mandate, we stayed the dismissal order pending resolution of the People's appeal from the trial court's habeas ruling.
We granted Bilbrey's unopposed motion to expedite the appeal from the habeas ruling and, on our own motion, consolidated that appeal with the People's appeal from the dismissal motion for purposes of oral argument and decision.
We affirm in part and reverse in part both the order granting Bilbrey's petition for writ of habeas corpus and the order dismissing the case based on the violation of Bilbrey's right to a speedy trial.
BACKGROUND
I.-II.
III.
Speedy Trial Motion and Dismissal
In March 2017, after the People noticed their appeal from the order granting Bilbrey habeas relief and a new trial, Bilbrey moved to dismiss the information for violation of his right to a speedy trial under section 1382. Bilbrey argued the statute required dismissal because he had not been
The People opposed the motion, arguing their pending habeas appeal divested the trial court of jurisdiction to rule on the motion. In the alternative, they argued in passing that their pending appeal constituted good cause for the delay in retrying Bilbrey.
The trial court heard Bilbrey's motion on March 22, 2017. The court found that the order granting Bilbrey habeas relief had been served on the relevant parties November 21, 2016, and that the People had 60 days thereafter to bring Bilbrey to trial. The court granted the motion, accepting Bilbrey's argument that, absent a stay under section 1506 or Bilbrey waiving time, he was entitled to dismissal under section 1382.
Two days later, the People filed a petition for writ of mandate, asking us to direct the trial court to vacate its dismissal order. We construed the petition as one for a writ of supersedeas and granted it, staying the dismissal order pending resolution of the People's appeal in case no. A150273.
DISCUSSION
On appeal, the People contend the trial court erred by granting Bilbrey's petition for writ of habeas corpus and by granting his motion to dismiss.
A151401. The Trial Court Retained Jurisdiction to Rule on Bilbrey's Motion to Dismiss, and the People Have Not Shown the Trial Court Abused its Discretion by Granting the Motion.
The People also appeal from the trial court's order granting Bilbrey's post-habeas motion to dismiss for violation of his right to a speedy trial under section 1382. They argue their appeal in case No. A150273 divested the trial court of jurisdiction to rule on Bilbrey's motion to dismiss because the motion was a "matter related to, embraced by, or affected by" the appeal from the habeas order granting Bilbrey a new trial. They also argue section 1506 of the Penal Code, which authorizes their appeal from the habeas order, did not require them to seek a stay of the order pending their appeal because "the trial court effectively ordered him discharged or released." As to the merits of the dismissal order, the People maintain dismissal was improper both because an appealed habeas order is not final and because the pending appeal constituted good cause to delay Bilbrey's retrial beyond the 60-day deadline.
In response, Bilbrey contends the trial court retained jurisdiction to rule on his motion to dismiss because the People failed to seek a stay of the habeas order as required by section 1506. The People were required to request a stay under that statute, Bilbrey argues, because the habeas order granted him " 'relief other than a discharge or release from custody.' " On the merits, Bilbrey argues dismissal was required because his retrial did not begin within 60 days of the November 21, 2016 habeas order as required by section 1382, and he notes the absence of authority indicating that a pending appeal, by itself, constitutes good cause to delay trial beyond the statutory deadline.
The parties do not dispute that Bilbrey has remained in custody pending the People's appeal from the habeas order granting him a new trial. Because part I of our Discussion concluded that Bilbrey was entitled to a new trial only on his attempted murder conviction, our analysis in this part is necessarily limited to whether dismissal of that count was lawful.
A. The Trial Court Retained Jurisdiction to Rule on the Motion to Dismiss
We review de novo the People's claim that the trial court lacked jurisdiction to grant Bilbrey's section 1382 motion. (See Day v. Collingwood (2006)
1. Analysis
"The general rule is that ' " '[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur ' [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.]" ' " ( People v. Tulare County Superior Court (Gregory ) (2005)
"Jurisdiction survives, however, where provided by statute." ( Flores , supra ,
In the criminal context, the Legislature has enacted statutes specifically addressing the effect of a pending appeal on proceedings in the trial court.
Section 1506 functions similarly in the context of proceedings on petitions for a writ of habeas corpus. Section 1506
Until 1957, section 1506 stated that an appeal could be taken "by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant after his conviction, in all criminal cases" with certain exceptions.
Prior to the 1957 amendment, the issue had arisen whether the People could "appeal from an order on habeas corpus which directs that a petitioner be granted relief but which does not order his release from custody." ( In re Chessman (1955)
More fundamentally here, section 1506 also now distinguishes between the effects of the People's appeal from a habeas order granting release or discharge and their appeal from an order granting "other" relief. Notably, in both situations and as with sections 1242 and 1243 in the context of direct appeals, section 1506 allows the prevailing habeas petitioner to enjoy the benefits of a favorable trial court disposition during the pendency of the appeal, subject to certain limitations. Specific to our purpose here, on appeal from such an order that "grants relief other than a discharge or release from custody" the trial or appellate court may, "upon application by the people, in its discretion, and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter." ( § 1506.) Thus, a defendant who is granted partial relief-something short of release or discharge-may benefit from execution of the favorable order pending the People's appeal unless the trial or appellate court exercises its discretion to grant a stay requested by the People. The question before us is what effect the People's appeal has on execution of the order granting habeas relief if, as here, the People do not request and receive a stay.
The parties cite no authority previously interpreting or applying the stay provision of section 1506, and our research discloses none that squarely answers the question before us. As noted by the People at oral argument, some courts have referred to section 1506 in the limited context of noting, mostly impliedly, that certain forms of
One of the few cases otherwise interpreting section 1506 since its 1957 revision is Huff , supra ,
The People appealed, "but made no application for a stay of the order. ( Pen. Code, § 1506.)" ( Huff , supra , 46 Cal.App.3d at pp. 363-364,
After quoting most of section 1506, including the stay provision, the court explained more generally, "The effect of section 1506 may be illustrated as follows: (1) if an appeal is not taken an order becomes final when the time for appeal has passed [citation]; (2) if an appeal is taken, and a request for a stay of the order is made and granted, then the order is stayed pending appeal ( Pen. Code, § 1506 ); and (3) if an appeal is taken and a request for stay is
Considering Huff and the foregoing statutory analysis, we interpret the operative language of section 1506 to create an exception to the general jurisdiction rule set forth in Flores . As such, absent a stay, the trial court has jurisdiction to execute a habeas order despite the pendency of the people's appeal from that order. If the trial court did not otherwise have jurisdiction to act, there would be no need for the statute to provide for the availability of a stay. Any argument that such a stay is not necessary to prevent the trial court from proceeding would render meaningless the provision of section 1506 allowing the People to seek a stay and the court to grant one-running afoul of "one of guiding principles of statutory construction, that significance be accorded every word of an act." ( People v. Johnson (2002)
The People do not really argue otherwise. They concede in their opening brief that the statute requires them to apply for a stay when a habeas order grants relief other than discharge or release from custody.
We are also not persuaded by the People's argument that section 1506 should
We recognize that the general rule that an appeal automatically stays the trial court judgment serves the purpose of preventing the trial court from interfering with the appellate court's jurisdiction and rendering the appeal moot. Our interpretation and application of section 1506 does not contravene that purpose. If the People and the trial court had proceeded to retry Bilbrey while the People's appeal from the order granting habeas corpus was pending, this would have interfered with this court's jurisdiction. Had that occurred, we would have considered the appeal just as we have done, and if we had reversed the order granting Bilbrey relief on the ground of ineffective assistance of counsel, the original judgment against Bilbrey would have been reinstated and Bilbrey returned to custody to serve his original sentence. The speedy trial violation would become moot because the grant of new trial would be reversed. While we have reached a different result in the habeas appeal, the People have not been prevented from prosecuting that appeal and we have not been impeded in considering it.
Thus, we agree with Bilbrey that, absent a stay pending resolution of the People's appeal, the trial court retained jurisdiction over his case, including his motion to dismiss. The language and context of section 1506 necessarily imply that a court that grants habeas relief other than a discharge from custody retains jurisdiction to undertake further proceedings despite the pending appeal unless and until the People request and the court grants a stay. Here, the People did not seek a stay, meaning the trial court retained jurisdiction to rule on Bilbrey's motion to dismiss. We turn, then, to consider the propriety of the trial court's order granting that motion.
B. The Section 1382 Dismissal Order Was Proper.
We review a trial court's ruling on a motion to dismiss pursuant to section 1382 of the Penal Code for abuse of discretion. ( People v. Hajjaj (2010)
The statutory speedy trial rights provided in section 1382 and related sections of the Penal Code " 'are supplementary to and a construction of' the state constitutional speedy trial guarantee." ( People v. Martinez (2000)
Here, the People first argue dismissal was improper because the 60-day period for Bilbrey to be retried has not begun to run, and will not do so unless and until the habeas order becomes final. They rely on Sykes , suggesting that the time period runs only when the People do not appeal. The People suggest their appeal of the habeas order tolled the 60-day period pending the outcome of their appeal. We find no support for this proposition in Sykes .
In Sykes , our Supreme Court considered whether the 60-day period applied where a petitioner had obtained relief by way of a writ of habeas corpus rather than one of the procedures described in the express provisions of the then current version of section 1382 (i.e., after a mistrial, entry of an order granting a new trial or filing of a remittitur in the trial court after a conviction has been reversed on appeal). ( Sykes , supra , 9 Cal.3d at pp. 88-90,
We agree there is no indication the People had appealed the order granting Sykes habeas relief, but that fact was immaterial to the Sykes court's determination. As Bilbrey suggests, the effect of an appeal on the 60-day period was simply not before the court. Thus, Sykes lends no support to the People's contention that the 60-day provision does not apply when they have appealed an order granting habeas relief. ( People v. Jennings (2010)
Rather, the import of Sykes was to make clear that a habeas petitioner has a constitutional speedy trial right that applies after a trial court has granted a new trial as relief on a petition for habeas corpus. Sykes
Other than Sykes , the People cite no authority for the proposition that the 60-day statutory period was tolled by their habeas appeal. Given our preceding analysis of section 1506 and the fundamental nature of a criminal defendant's right to a speedy trial, we are not inclined to adopt such a position here. And there is another reason to reject the tolling argument, which concerns the language of section 1382. With respect to mistrials and orders granting new trials, if an appeal is not taken, or if an appeal from such orders is taken , subdivision (a)(2) provides that the 60-day time period shall run from the date "after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court ." ( § 1382, subd. (a)(2) [quoted in full in note 15, ante ], italics added.) In addressing the "issuance of a writ or order which, in effect, grants a new trial," however, the statute makes no reference to an appeal being taken or to the filing of a remittitur, but specifies only that the time period runs from the date "notice of the writ or order is filed in the trial court and served upon the prosecuting attorney." While the Legislature thus provided in effect that the appeal from a trial court order declaring a mistrial or granting new trial would toll the speedy trial period, it provided no such tolling in the case of an appeal from a grant of a writ. If it had intended to toll the speedy trial period for writs when it amended the statute to include them, it presumably would have employed language similar to that already contained in the statute in regard to mistrials and orders granting a new trial. (See Kray Cabling Co. v. County of Contra Costa (1995)
In the alternative, the People argue that their pending appeal in case No. A150273 constituted good cause to go beyond the 60-day statutory period. "What constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court. [Citations.] In reviewing trial courts' exercise of that discretion, the appellate courts have evolved certain general principles. The courts agree, for example, that delay caused by the conduct of the defendant constitutes good cause to deny his motion to dismiss. Delay for defendant's benefit also constitutes good cause.
In support of their good-cause argument, the People rely on cases in which courts considered whether an appeal may be valid justification for a delay in bringing a defendant to trial. (See United States v. Loud Hawk (1986)
But it was the People's burden to seek a stay by demonstrating good cause in a motion or application for a stay ( Batey v. Superior Court (1977)
In short, we conclude that the People have not met their burden to show the trial court abused its discretion in dismissing the attempted murder charge under section 1382. In part I of the Discussion section, however, we concluded Bilbrey was entitled to a new trial only as to that conviction. Accordingly, only the attempted murder count warranted dismissal under section 1382, and the trial court erred in dismissing the other charges.
DISPOSITION
We affirm the November 21, 2016 order granting Bilbrey's petition for writ of habeas corpus only as to Bilbrey's conviction for attempted murder. We also affirm the March 22, 2017 order granting Bilbrey's motion to dismiss as to that charge.
We reverse the order granting habeas corpus and the order granting Bilbrey's motion to dismiss as to Bilbrey's convictions for aggravated mayhem, assault with a deadly weapon and battery with great bodily injury. We reduce the conviction for aggravated mayhem under section 205 to one for general mayhem under section 203 and reinstate Bilbrey's convictions for assault with a deadly weapon and battery with great bodily injury. We remand to the trial court for resentencing on those counts.
Our May 2, 2017 stay of the dismissal order will dissolve upon issuance of the remittitur.
We concur.
KLINE, P.J.
RICHMAN, J.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
See footnote *, ante .
On our own motion, we take judicial notice of the record in People v. Superior Court (Bilbrey) (May 2, 2017, No. A150861), pursuant to Evidence Code section 452, subdivision (d).
See footnote *, ante .
The parties devote substantial briefing to section 916, subdivision (a), a section of the Code of Civil Procedure that sets forth the same general rule for civil cases. The parties assume without discussion that section 916, subdivision (a) governs jurisdiction in criminal proceedings. That section is contained in part 2 of the Code, which is entitled "Of Civil Actions," and in title 13 of that part, which is entitled "Appeals in Civil Actions," suggesting it is inapplicable in criminal proceedings. (See People v. Superior Court (Laff ) (2001)
We believe section 1235, et seq. applies in the context of only direct criminal appeals. The fact that section 1235, et seq., appears under title 9, chapter 2 of part 2 of the Penal Code-titled "Appeals in Felony Cases"-supports an inference that those sections apply only in direct appeals from criminal judgments and orders. Similarly, the fact that section 1506 appears under title 12, chapter 1 of part 2-titled "Of the Writ of Habeas Corpus"-supports an inference that section 1506 applies only to appeals in habeas proceedings. (See People v. Hull , supra ,
In full, section 1506 reads, "An appeal may be taken to the court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought, in all criminal cases, excepting criminal cases where judgment of death has been rendered, and in such cases to the Supreme Court; and in all criminal cases where an application for a writ of habeas corpus has been heard and determined in a court of appeal, either the defendant or the people may apply for a hearing in the Supreme Court. Such appeal shall be taken and such application for hearing in the Supreme Court shall be made in accordance with rules to be laid down by the Judicial Council. If the people appeal from an order granting the discharge or release of the defendant, or petition for hearing in either the court of appeal or the Supreme Court, the defendant shall be admitted to bail or released on his own recognizance or any other conditions which the court deems just and reasonable, subject to the same limitations, terms, and conditions which are applicable to, or may be imposed upon, a defendant who is awaiting trial. If the order grants relief other than a discharge or release from custody, the trial court or the court in which the appeal or petition for hearing is pending may, upon application by the people, in its discretion, and upon such conditions as it deems just stay the execution of the order pending final determination of the matter."
As originally enacted in 1927, section 1506 read: "An appeal may be taken to the district court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant after his conviction, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered, and in such cases to the supreme court; and in all criminal cases prosecuted by indictment or information in a court of record, where upon appeal or original application after conviction of the defendant an application for a writ of habeas corpus has been heard and determined in a district court of appeal, either the defendant or the people may apply for a hearing in the supreme court. Such appeal shall be taken and such application for hearing in the supreme court shall be made in accordance with rules to be laid down by the judicial council. If the people appeal, or petition for hearing in either the district court of appeal or the supreme court, the defendant shall not, in any case in which the judgment of conviction has become final, be discharged from custody pending final decision upon the appeal or petition for hearing and he must, in such cases, be retaken into custody if he has been discharged; provided, however , that in bailable cases the defendant may be admitted to bail, in the discretion of the judge, pending decision of the appeal or petition for hearing." (See Stats. 1927, ch. 628, § 1, italics added.)
The parties rely in their briefs on Gregory , supra ,
Nor do they dispute that they did not seek a timely stay of the habeas order in this case. The record reflects the People eventually sought a stay under section 1506. But they did not do so until March 22, 2017, after the trial court granted Bilbrey's section 1382 motion to dismiss. Moreover, the People's written motion sought a stay of the dismissal order rather than the habeas order. The record does not reflect the trial court's disposition of the People's motion, though presumably the court denied it. As described above, however, we stayed the dismissal order pending resolution of the People's appeal in case No. A150273 on May 2, 2017.
Section 1382, subdivision (a)(2) provides in its entirety:
"(2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an indictment or information, or reinstatement of criminal proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which, in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney, or within 90 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney in any case where the district attorney chooses to resubmit the case for a preliminary examination after an appeal or the issuance of a writ reversing a judgment of conviction upon a plea of guilty prior to a preliminary hearing. However, an action shall not be dismissed under this paragraph if either of the following circumstances exists:
"(A) The defendant enters a general waiver of the 60-day trial requirement. A general waiver of the 60-day trial requirement entitles the superior court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 60 days of the date of that withdrawal. Upon the withdrawal of a general time waiver in open court, a trial date shall be set and all parties shall be properly notified of that date. If a general time waiver is not expressly entered, subparagraph (B) shall apply.
"(B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. In the absence of an express general time waiver from the defendant, or upon the withdrawal of a general time waiver, the court shall set a trial date. Whenever a case is set for trial beyond the 60-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."