Los Angeles County Super. Ct. No. BA304502 Court: Superior County: Los Angeles Judge: Judith L. Champagne.
The opinion of the court was delivered by: George, C. J.
Penal Code section 1382 - one of the principal provisions implementing California's statutory right to a speedy trial - provides that when a defendant charged with a felony is not brought to trial within 60 days of arraignment on an indictment or information (and the defendant has not expressly or impliedly consented to having trial set for a date beyond that period), the criminal charges against the defendant shall be dismissed unless there is "good cause" for the delay.
In the present case, on the 60th day after arraignment, the appointed counsel of one of two jointly charged defendants was engaged in another trial that had extended longer than anticipated but that was expected to be completed very shortly. For that reason, the trial court found there was good cause to delay the trial of both defendants (without their consent) on a day-to-day basis until the attorney's other trial was completed. Ultimately, the trial in the present proceeding commenced on the 66th day after arraignment. At that trial, both defendants were convicted of all charged offenses.
In the Court of Appeal, defendants principally contended that the trial court erred in finding that appointed counsel's engagement in another trial constituted good cause to delay the trial in this case beyond the 60th day without the consent of defendants, maintaining that the trial court's finding of good cause conflicted with this court's decision in People v. Johnson (1980) 26 Cal.3d 557 (Johnson) and subsequent cases that applied the holding in Johnson. The Court of Appeal rejected defendants' contention, concluding that the circumstances of this case were distinguishable from Johnson. We granted review to consider the validity of the conclusion reached by the Court of Appeal.
In this court, defendants vigorously assert that the Court of Appeal's decision is inconsistent with this court's holding in Johnson, supra, 26 Cal.3d 557. The Attorney General disputes this assertion, and further requests that we reconsider the holding in Johnson itself.
As we explain, although there is language in the opinion in Johnson, supra, 26 Cal.3d 557, that supports defendants' position, a careful reading of the entire decision demonstrates that the language in Johnson relied upon by defendants is overbroad and should be clarified. The circumstances presented in Johnson - in which a lengthy delay in bringing a criminal case to trial was attributable to the state's chronic failure to provide a number of public defenders sufficient to enable indigent defendants to proceed to trial within the presumptive statutory period - are clearly distinguishable from those in the present case. Here, trial was delayed on a day-to-day basis for a brief period of time in order to permit one co-defendant's appointed counsel to complete an ongoing trial in another case that ran longer than had been anticipated, a delay that -unlike the delay in Johnson - cannot fairly or reasonably be attributed to the fault or neglect of the state. We conclude that Johnson should not be understood to preclude a trial court from finding good cause to delay trial under the circumstances presented by the case before us and accordingly affirm the judgment of the Court of Appeal upholding the trial court's action.
The facts giving rise to the criminal charges against defendants Willie J. Jackson and Michael Jerome Sutton (set forth verbatim from the Court of Appeal's opinion) are as follows:
On May 31, 2006, Officer Anthony Jackson [(Officer Jackson)], a member of the [Los Angeles Police Department's] narcotics division buy team, was working undercover at 7th and Ceres in Los Angeles. Defendant Jackson was counting money on Ceres. The officer looked at defendant Jackson, who approached the officer and asked what he wanted. The officer said he wanted "a 20," meaning $20 worth of [drugs]. Defendant Jackson said he had to get it; he crossed the street to a waist-high camping tent, where [defendant] Sutton was waiting.
Sutton and defendant Jackson talked, although the officer could not overhear their conversation. Sutton opened a white bottle out of which he poured an off-white solid substance into his hand and gave it to defendant Jackson. Defendant Jackson walked back to the officer and asked him for the money. The officer gave defendant Jackson a prerecorded $20 bill, and defendant Jackson gave the officer an off- white solid substance resembling rock cocaine. As the officer walked away, he signaled to his partners that the buy was complete.
Jackson was arrested. Officers recovered $14 from his pants pockets. Sutton was arrested. Officers recovered an off-white substance resembling rock cocaine, a white canister also containing an off-white substance resembling cocaine, and $44 from him. Detective Vip Kanchanamongkol, who was in charge of the operation, compared a $20 bill recovered from Sutton to the prerecorded bill Officer Jackson used to buy the drugs from defendant Jackson. The bills matched. Testing confirmed that the substance Officer Jackson bought was 0.33 grams of cocaine base and that the substance recovered from Sutton was 0.99 grams of cocaine base. [End of quoted passage from Court of Appeal opinion.]
As just noted, defendants were arrested on May 31, 2006 - immediately following the drug transaction - and a felony complaint was originally filed against both of them on June 2, 2006, charging Jackson and Sutton with sale of a controlled substance (Health & Saf. Code, § 11382) and charging Sutton additionally with possession of cocaine base for sale (Health & Saf. Code, § 11351.5).
Under Penal Code section 859b, in the absence of a waiver or unless good cause exists, a preliminary hearing must be held within 10 court days of the date on which a defendant is arraigned on a complaint. On June 16, 2006 - which the trial court described as day "10 of 10" - neither defendant was present in the court in which the preliminary hearing was set, apparently because the defendants, both of whom were in custody, had been brought to the wrong courthouse. At that time, the trial court dismissed the complaint (as required by § 859b), and Sutton was released from custody. Jackson remained in custody on a probation revocation. The trial court stated that it assumed the People would refile the complaint.
The People refiled the felony complaint three days later on June 19, 2006, and Sutton was again arrested and placed in custody. (Thereafter both defendants remained in custody throughout the pretrial proceedings.) After a preliminary hearing, Sutton and Jackson were held to answer and were arraigned on an information on July 21, 2006. Trial of the matter then was scheduled for Monday, September 11, 2006, as day "52 of 60" for purposes of Penal Code section 1382.*fn1 (Under section 1382, in a felony case a defendant must be brought to trial within 60 days of his or her arraignment on an indictment or information, unless (1) the defendant enters a "general waiver" (§ 1382, subd. (a)(2)(A)); (2) the defendant "requests or consents to" a trial date beyond the 60-day period, in which case he or she shall be brought to trial within 10 days of the date set for trial (§ 1382, subd. (a)(2)(B)); or (3) "good cause" for setting a trial date beyond that period is shown (§ 1382, subd. (a)).)
The trial date later was changed to Tuesday, September 12, 2006 - day "53 of 60" - and on September 12 all parties and counsel*fn2 appeared in Department 111 and announced ready for trial, although Jackson's appointed counsel, Steven Flowers, stated that he was "supposed to start trial today" in a case "which I think will settle." Flowers further stated: "I am supposed to start another trial tomorrow [(Wednesday, Sept. 13)] which will not settle. I am already in [Department] 100 on Thursday, and the date for this case to go to 100 is on Friday."*fn3 After noting that his client in the trial scheduled for Thursday was not in custody and that Flowers did not believe that client would object to a continuance, Flowers indicated he would request a continuance in the noncustody case. The trial court then reviewed separate plea offers that had been proffered by the prosecution to Sutton and to Jackson but not yet accepted or rejected by either defendant, and thereafter directed that the case be transferred to Department 100 for trial assignment on Friday, September 15, 2006, as "day 56 of 60." The court stated: "[A]ll parties are announcing ready for trial subject to the possibility that you [counsel Flowers] could be engaged in that other case, but you're going to make a motion." Flowers responded: "Exactly."
On Friday, September 15, 2006, day 56 of 60, the parties and counsel appeared in Department 100. At that time, Flowers stated he was then engaged in trial in another case.*fn4 The court asked Flowers when that trial would be completed, and Flowers responded: "I would anticipate, it's more than likely the testimony will be done today in my other case." The court stated: "But you've got to do jury instructions and argument, so you're not going to finish until Monday or Tuesday?" Flowers responded: "Monday probably." When both defense counsel indicated that they wanted to bring the present case back for trial on Tuesday, September 19 (day 60 of 60), the court informed them, "I'm going to try to get a time waiver [from defendants] because I don't want . . . to go to [the] last day," and thereafter stated to defendant Jackson: "Your lawyer is engaged in trial right now, and he can only try one case at a time. But he will be available to try your case on the 19th of September. Is it agreeable with you that you come back here on September 19th and have your trial within two days of that date?" Jackson responded: "As long as no time is being waived." The court stated, "Oh, you don't want to waive time?" and Jackson responded: "No time. I don't want to waive time."
The court then stated: "That's fine. Then whether he's available or not, I'll have you back here on Monday and you guys can sit. You're coming back for nothing because he's engaged in trial. It doesn't require a time waiver, but I'm not the one who has to sit here. So that's fine, we'll bring you back on Monday, both of you, and you can sit." The court further observed: "[I]t seemed like a waste to bring them back. But if there's no time waiver, I have to bring them back every day." The court directed the parties and counsel to return on Monday, September 18, 2006, as day "59 of 60."
On Monday, September 18, 2006, day 59 of 60, counsel for the People and for Sutton announced ready, but Flowers, Jackson's counsel, stated he still was engaged in trial. The court noted that it was "trailing this day to day" and that the trailing was "on motion of Mr. Flowers, correct?" Flowers responded, "Continuing motion that started last Friday." The court ordered the parties and counsel to return on Tuesday, September 19, at 8:30 a.m.
On Tuesday, September 19, 2006, day 60 of 60, Flowers informed the court that he still was engaged in trial. The court inquired, "When is it supposed to be over?" Flowers responded: "Probably tomorrow. We're dark today." The court noted on the record that neither defendant was waiving time, and ordered both defendants back to court the following morning. When Sutton asked the court when the 60-day period started to run, the court informed Sutton that "this is the 60th day. But if . . . the lawyer is engaged in trial, there's good cause to put the matter over for both defendants. Mr. Flowers is still engaged in trial. The court finds good cause. The matter is trailed. We'll have you back tomorrow."
On Wednesday, September 20, 2006, day 61 of 60, Flowers stated he still was engaged in trial. Nonetheless, Flowers stated that "I'm told I should make at least a pro forma motion to dismiss." The following colloquy ensued:
The Court: "On what basis?"
Mr. Flowers: "Because [d]ay 61 of 60 and -"
The Court: "But you're engaged in trial -"
Mr. Flowers: "And I'm still -"
The Court: " - You've asked for the continuance. Now, how can you make a motion to dismiss? Do you want to go to trial on this second case at the ...