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People v. Benhoor

September 24, 2009; modified as 10/20/2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUSTIN PANAH BENHOOR, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, R. Drescher, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Los Angeles County Super. Ct. No. 9384086 [Super. Ct. App. Div. No. BR046110]).

The opinion of the court was delivered by: Perluss, P. J.

CERTIFIED FOR PUBLICATION

After he was cited for driving at an unsafe speed, Justin Panah Benhoor*fn1 unsuccessfully contested the charged infraction through a trial by written declaration. Dissatisfied with the adverse decision, he exercised his right to a trial de novo. The clerk set the new trial for a date 57 calendar days after receipt of Benhoor's new trial request. Arguing that rule 4.210 of the California Rules of Court, which governs trials by declaration, requires the new trial be held within 45 calendar days of the clerk's receipt of the new trial request, Benhoor moved to dismiss the citation. The trial court denied the motion and convicted Benhoor of the infraction. Although we agree with Benhoor's interpretation of rule 4.210(b)(7),*fn2 we disagree with his contention the remedy for this violation of the rule is dismissal pursuant to Penal Code section 1382 (section 1382), which provides a statutory right to a speedy trial and requires dismissal of an action that is not timely tried absent a showing of good cause. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Benhoor was found guilty on December 11, 2007 of driving at an unsafe speed (Veh. Code, § 22350),*fn3 following a trial by written declaration (Veh. Code, § 40902, subd. (a)(1)). He filed a timely written request for a trial de novo (rule 4.210(b)(7)), which was received by the clerk on December 19, 2007. On December 21, 2007 Benhoor's request was granted (Veh. Code, § 40902, subd. (d)); and the new trial was set for February 14, 2008, 57 days after the written request was received.

At the commencement of trial Benhoor moved to dismiss the citation pursuant to section 1382, subdivision (a)(3), which requires a defendant in a misdemeanor or infraction case to be brought to trial within 30 days after entry of an order granting a new trial from which no appeal is taken. The trial court denied the motion, and Benhoor was found guilty.*fn4

The appellate division of the superior court affirmed the conviction, rejecting Benhoor's "assumption that an order granting a request for a trial de novo, following a conviction in a trial by written declaration pursuant to Vehicle Code section 40902, is the legal equivalent of "an order granting a new trial from which no appeal is taken' within the meaning of section 1382, subdivision (a)(3),"-essentially finding the statutory right to a speedy trial was inapplicable if the defendant proceeded by electing a trial by written declaration. We ordered the case transferred to this court to secure uniformity of decision and to settle an important question of law. (Rules 8.1002, 8.1008.)

DISCUSSION

1. Governing Law

a. The Light to a Trial by Written Declaration

To "promote[] judicial economy and convenience" for defendants, Vehicle Code section 40902, subdivision (a),*fn5 permits defendants charged with Vehicle Code infractions to elect to have a trial by written declaration. (People v. Kennedy (2008) 168 Cal.App.4th 1233, 1239 (Kennedy).) "If the defendant is dissatisfied with a decision of the court [after a trial by written declaration], the defendant shall be granted a trial de novo." (Veh. Code, § 40902, subd. (d).) "The procedure of trial by written declaration is an accommodation to defendants, which obviates the expenditure of time and money to appear in court to defend a minor traffic infraction or violation of an ordinance. It is an election which is solely within the defendant's discretion. It also promotes judicial economy by reserving courtroom time and resources for more serious offenses. Yet the defendant retains the right to request a court trial in the event of an adverse decision." (Kennedy, at p. 1241.)

The Legislature authorized the Judicial Council to adopt rules and forms for conducting trials by declaration. (Veh. Code, § 40902, subd. (a)(2).) Rule 4.210 now sets forth statewide procedural requirements for trials by written declaration. In particular, rule 4.210(b)(7) implements Vehicle Code section 40902, subdivision (d)'s mandate that a defendant dissatisfied with a decision of the court in a trial-by-declaration proceeding "shall be granted a trial de novo."

Rule 4.210(b)(7) provides in part, "If the defendant files a Request for New Trial (Trial de Novo)(form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant's written request for a new trial." Rule 4.210 does not specify dismissal or any other remedy for failure to set a trial date within 45 calendar days of receipt of the defendant's written request for a new trial. Moreover, rule 4.210(c) generally provides, "Due dates and time limits must be as stated in this rule, unless changed or ...


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