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People v. Wagner

July 21, 2009; as modified August 14, 2009


APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed. (Super.Ct.No. SWF015764)

The opinion of the court was delivered by: Richli Acting P.J.



This is an appeal by the People from the dismissal of the case against defendant Tony Robin Wagner pursuant to Penal Code section 1382*fn1 because the trial court found there were no courtrooms available to hear the last-day case in a timely manner, and there was not good cause to continue the case.

The People contend on appeal that the trial court, pursuant to section 1050, subdivision (a), should have given precedence to the instant case over civil cases, including family, probate, and general civil cases being heard in Riverside County, and the trial court abused its discretion by refusing to continue the case beyond the time limit set forth in section 1382.

We will conclude the trial court did not abuse its discretion in denying the requested continuance after finding no courtroom available in which to try the matter and that dismissal of the matter was not error.


On March 23, 2006, the People filed a felony complaint against defendant charging him with one count of assault with a semiautomatic firearm (§ 245, subd. (b)). Defendant was also charged with allegations that he personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)).*fn2 A preliminary hearing was conducted on December 20, 2006, and defendant was held to answer. An information was filed with the same charges as the complaint on December 29, 2006.

On January 3, 2007, defendant was arraigned on the information. The case was continued many times between February 28, 2007, and September 22, 2008, by request of both parties; it was then finally set for trial. On the last day for trial, the trial court, specifically the calendar judge, concluded there were no available courtrooms, and the case was set for a motion to dismiss under section 1382 on the following day. That motion was granted.


On March 7, 2006, defendant and his friend, Scott Lamb, went to a residence occupied by Jerry Jackson located on Stetson Street in Hemet.*fn3 They were accompanied by Jackson‟s ex-girlfriend, Celeste Trzepacz, who wanted to get her dog back from Jackson. After an exchange of words, Lamb and Jackson got into a fist fight. According to Trzepacz, prior to the fight, Lamb removed a handgun from his waistband and handed it to defendant. Trzepacz went inside Jackson‟s residence, and while inside, she heard three gunshots. When she emerged from the house, she saw that Jackson had been shot and was on the ground. He had gunshot wounds on both knees. Trzepacz believed that defendant was still holding the handgun. Defendant was interviewed by the police after the incident. He began the interview denying being present. He eventually told police, "I shot him" but claimed Jackson was coming toward him. Defendant described the gun to police as a semiautomatic handgun.


The People contend that the trial court erred by dismissing the case pursuant to section 1382 because it failed to properly consider and give precedence to this case over other civil cases in its effort to find an available courtroom. Further, the trial court erred by failing to conclude that court congestion and mismanagement constituted good cause to continue the case.

A. Additional Factual Background

On September 22, 2008, several cases (including the instant case, two other felony cases, and one misdemeanor case) were called on their last day.*fn4 The trial court informed counsel for all defendants that it had checked around the county in both the civil and criminal courts, and there were no courtrooms available until the following day. The trial court found that most of the family law courts did not have jury boxes, and the cases heard in those courts were important in order to protect children. It stated, "Taking away the judge that protects the children would be very unfortunate for the children and for society." The trial court also stated that most of the juvenile courts also did not have jury boxes and had "huge" calendars. The time deadlines for prosecuting juveniles were very strict. Further, they were responsible for helping children get out of abusive or neglectful homes.

As for civil courts, the trial court refused to interrupt an ongoing civil jury trial. The trial court also rejected that the trial judge who handled guardianship and the probate judge could be diverted to do criminal trials. It then stated, "The three civil judges assigned to the converted Hawthorne Elementary School are not going to get a criminal trial. Hawthorne is a temporary use facility. There is insufficient security at Hawthorne. It would be unsafe for jurors, for the DA, defense counsel and for the witnesses if criminals and criminal trials were assigned to Hawthorne. Also, the administrative office of the courts has assigned various visiting judges to Hawthorne for the specific purpose of doing civil trials. I will not change the assignment unless the Court of Appeal[] or administrative office of the court orders us to do so."*fn5

Further, the trial court refused to divert himself, the calendar judge, to conduct a criminal trial, as there would then be no one to conduct calendar. The trial court noted that it had informed the chair of the judicial council, the Administrative Office of the Courts (AOC), pursuant to section 1050 that the court was in danger of dismissing cases. The trial court ruled, "Therefore, we have done everything possible to find a place for the last remaining cases. No courtroom is available. The defense Motion to Dismiss will be heard tomorrow . . . ."

The district attorney inquired regarding the efforts made by the trial court to find a courtroom. The trial court noted that there were no trailing cases sent out already; all were last day. It noted that every civil courtroom in the county was conducting a criminal trial, so even if it wanted to interrupt a civil trial, it could not. It refused to take the calendar judge out to try a short misdemeanor case.

The trial court also found that no judge could come back from vacation, all of the pro tempore judges were being used, and the presiding judge was involved in meetings with the AOC.

The district attorney asked that the judges conducting exclusively civil cases at Hawthorne Elementary School be brought to the courthouse to try criminal cases because criminal trials take precedence over civil trials. The district attorney stated, "Is there something I‟m missing that says the administrative office of the court takes precedence over the law?" The trial court refused to have the civil judges try criminal cases unless told to do so by the AOC or the Court of Appeal.

The district attorney argued that there was good cause to continue the cases because of the court congestion and objected to a motion to dismiss. The trial court found that court congestion was not an emergency situation that warranted a continuance, as it was a routine circumstance in Riverside County. Defendant‟s counsel objected to any further delay. At no time ...

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