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People v. Disandro

July 7, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHIRLEY ANN DISANDRO, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Super.Ct.Nos. APP004633 286406SD Michael S. Hider, Judge. (Retired judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

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

CERTIFIED FOR PUBLICATION

OPINION

On July 14, 2008, defendant and appellant Shirley Ann Disandro, a letter carrier for the United States Postal Service (USPS), was cited by a Temecula police officer for driving at an unsafe speed (Veh. Code, § 22350)*fn1 and driving with a load obstructing her control of the vehicle (Veh. Code, § 21700).*fn2 On January 6, 2009, when defendant was not present, her trial was held in traffic court, and she was found guilty as alleged in the traffic citation.

On January 30, 2009, defendant appealed the judgment to the appellate division of the superior court, which rendered an affirming opinion on October 27, 2009. On December 15, 2009, on the court's own motion, we ordered the case transferred to this court pursuant to California Rules of Court, rules 8.1002 and 8.1008(c)(1)(A), because a transfer was necessary to secure uniformity of decision and to settle an important question of law. No supplemental briefing was ordered or requested, and we determine the matter on the transferred record. Although we agree with the appellate division's decision to affirm the judgment, we cannot agree with its reasoning.

FACTUAL AND PROCEDURAL BACKGROUND

According to the record, defendant was driving her own personal vehicle while delivering mail for her employer, the USPS, when she was cited on July 14, 2008. The citation states she had been "warned previously." She timely appeared on September 15, 2008, for her arraignment and pleaded not guilty. At that time, she signed a form entitled "Rights of a Defendant--Infraction" acknowledging her rights. In part, the form advised defendant she had a right to retain an attorney at her own expense and "the right to a continuance or delay to obtain an attorney or to prepare [her] defense." The form further advised defendant she had a right to a trial by the court if she pled not guilty and the right to confront and examine all witnesses testifying against her at trial. Although the form includes the option to waive these rights, defendant did not complete or sign that part of the form. The trial was scheduled for December 2, 2008.

On November 13, 2008, about two weeks before her trial was scheduled to commence, defendant submitted a form request for a continuance. The form indicates a request for a continuance is untimely if it is not filed "at least 10 days prior to the Court Trial hearing date." Under the section entitled "reason," defendant stated she and her husband were both scheduled to have surgery. As explained on the form, defendant agreed to waive her right to a speedy trial in order to obtain the continuance. The form does not mention or require the waiver of any other rights. Nor does it suggest defendants are limited to a single continuance. The request was granted, and the trial was rescheduled for January 6, 2009.

Once again, on December 19, 2008, about two weeks before the continued trial was about to commence, defendant submitted a timely form request for a continuance until February 3, 2009. The reason for the request states as follows: "The Notice to Appear for which this trial is scheduled was issued to me while I was performing my official duties as a Rural Carrier for the U.S. Postal Service. The Postal Service has requested that I be represented by the U.S. Attorney's Office but that office is still reviewing the request. A decision on this request should be made prior to 2/3/09." Once more, as explained on the form, defendant agreed to waive her right to a speedy trial as part of her request for the continuance. This time, her request was denied for the following reason: "Matter has been continued previously. The People are entitled to a speedy trial."

On January 5, 2009, the day before trial was scheduled to commence, an attorney from the United States Attorney's Office sent a letter to the traffic court by facsimile and first class mail. According to the letter, a notice of removal of the case was filed in the United States District Court. In addition, the letter states as follows: "As you know, pursuant to the provisions of 28 U.S.C. § 1446(d), this matter has been removed, and the Superior Court of Riverside County may proceed no further unless the case is subsequently remanded by the United States District Court." File-stamped copies of the notice of removal were enclosed with the letter. The appellate division's opinion indicates the minutes and case report of the traffic court do not show these documents were ever filed or received in the traffic court. However, the appellate division took judicial notice of them.

On January 6, 2009, trial commenced at 9:14 a.m., but defendant was not present. The police officer who issued the citation testified, and the court found defendant guilty as charged. Defendant was ordered to pay a fine of $132.80 for driving at an unsafe speed and a fine of $127.40 for driving with a load obstructing her control of the vehicle, plus a security fee of $40.

On January 15, 2009, the United States District Court remanded the case back to the traffic court. The ruling indicates the case was remanded because the notice of removal was untimely, and defendant did not show good cause for excusing the tardiness.

Defendant filed her notice of appeal in the appellate division on January 30, 2009. Through counsel, she then filed a proposed statement on appeal, stating she did not appear at trial "because a notice to remove the case to federal court had been filed prior to trial." She argued the court erred because it entered a conviction without legal authority since the case had been removed to federal court prior to trial. She also stated she was harmed by the error because she was convicted without an opportunity to defend herself.

On May 8, 2009, the traffic court filed an order making the following correction to defendant's proposed statement: "Officer Strang, as a percipient witness, testified that [defendant] was driving at a speed greater than was reasonable for the prevailing conditions and the vehicle was so loaded as to obstruct the driver's view or control of her vehicle. This testimony was uncontradicted." As the appellate division commented, the traffic court had an independent duty to settle an accurate and truthful statement on appeal, by referring to the judge's notes, unofficial audio records, if any, and the judge's memory. (Cal. Rules of Court, rule 8.916(d)(4), (f)(2); Marks v. Superior Court (2002) 27 Cal.4th 176, 195-196; People v. Jenkins (1976) 55 Cal.App.3d Supp. 55, 63-66.) The appellate division commented ...


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