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People v. Graves

October 25, 2010


APPEAL from an order of the Superior Court of Los Angeles County, Robert P. O'Neill, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. 4WL12728 & App. Div. No. BR046613)

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


The People appeal the trial court's dismissal of a criminal prosecution against defendant Michael Anthony Graves, charging him with battery and spousal battery. (Pen. Code, §§ 242, 243, subd. (e)(1).)*fn1 The People's appeal to the appellate division of the superior court was dismissed on the ground the order terminating the prosecution was not appealable. We granted the People's petition to transfer this case from the appellate division to this court pursuant to California Rules of Court, rule 8.1008.*fn2

We transferred this case to settle an important question of law: How are courts to resolve the tension between (1) the People's right to trail a case within the time limit prescribed by the speedy trial statute, and (2) the trial court's right to deny a continuance request if the moving party has not shown good cause? Having given due consideration to the arguments presented by defendant Graves, the People, and amicus curiae, as well as to the parties' supplemental briefing, we reverse the trial court's ruling and remand for reinstatement of the misdemeanor complaint.


On December 23, 2004, the People filed a two-count misdemeanor complaint charging Graves with spousal battery on his wife, Jobeth Linstrot, and battery on his mother-in-law, Beatrice Linstrot. The charges arose out of an incident which apparently occurred inside a store.*fn3 Graves allegedly grabbed his wife by the hair and dragged her around. When her mother intervened, Graves allegedly pushed both women to the floor. A bench warrant was issued when Graves failed to appear for arraignment.

Three and a half years' later, on June 30, 2008,*fn4 Graves, who was now in custody, appeared in Los Angeles County Superior Court, Department 140 (Judge Lawrence Cho, presiding). Graves was arraigned on the misdemeanor complaint, pled not guilty, and was released on his own recognizance. Jobeth and Beatrice Linstrot were also in court that day. Defense counsel told the court that, having viewed the videotape from the store's security camera, the Linstrots now considered the entire incident to have been an accident and they no longer wanted to pursue the case.

Judge Cho set a trial date of July 28. While doing so, he referred to the fact July 28 would be day 28 of 30. This was because Graves had been in custody when he was arraigned on June 30. (See § 1382, subd. (a)(3).)*fn5 At the prosecutor's request, the trial court entered a protective order it described as a "Level 1 protective order, which is not a stay-away provision." The trial court recited the terms of the protective order, the Linstrots acknowledged their understanding of the order, and Graves agreed to comply with the order. The following colloquy then occurred:

"[The prosecutor]: I'd ask that the Court order back Ms. Jo Beth Linstrot and Beatrice Linstrot for trial.

"The Court: All right. [¶] Ms. Jo Beth Linstrot and Ms. Beatrice Linstrot, you're both ordered to return back to court for trial on July 28, 2008."

Proceedings then adjourned.

On July 28, the case again came before Judge Cho in Department 140. The defense announced ready for trial. The prosecutor said the police officer witnesses were present, but that the complaining witnesses had not shown up. The prosecutor then asked to trail the case within the statutory period. Although subpoenas had been issued for the Linstrots, the prosecutor conceded he did not know whether the Linstrots had been served. However, the prosecutor pointed out the complaining witnesses had been "ordered back on the last court date for today." Judge Cho responded: "[T]he plaintiff's motion to trail is denied as there's no proof of service shown; no good cause. The People are deemed ready." The prosecutor objected, saying the People were not ready and wanted the case to trail: "We . . . believe that we have a right to trail within the statutory period."

Defense counsel then said: "[J]ust so the defense's position is clear on this, the defense is not asking the Court to deem unable to proceed. We're asking to be sent out on the 8 of 10 date [sic: actually, 28 of 30]. We're not asking for a dismissal. The defense is ready. No good cause has been shown . . . to trail past the 8 of 10." Judge Cho ruled: "All right. The case is deemed ready." He ordered the case sent to Department E, the master calendar court, and that it be sent out "for trial . . . forthwith."

Later that morning, Judge Stephanie Sautner in Department E called the case for trial. When the prosecutor explained he had already asked to trail because the complaining witnesses had not appeared, Judge Sautner said, "Well, you guys know the court rule, whether you agree with it or not. It is a Rule of Court that on the date of trial you have to show good cause. And today is the date of trial. So the People were deemed ready in Department 140. . . ."

That afternoon, the case was called for trial in Department B by Judge Robert O'Neill. Defense counsel announced ready and the prosecutor said the People were asking to trail the matter. Judge O'Neill refused to entertain the request: "The matter was resolved . . . in Department E, the master calendar, where it was transferred here for trial. So I'm not hearing any motions to continue or trail or anything like that. We're here for trial."

The following colloquy then occurred:

"[The prosecutor]: Then I believe it would be - that the court would take it upon itself to dismiss the case.

"The Court: I'm not dismissing the case. The matter's transferred here for trial. I'm ready to try the case.

"[The prosecutor]: I've been instructed not to dismiss the case either.

"The Court: Okay. Then we'll start picking a jury."

The trial court added: "[Y]ou've been deemed ready for trial by Department E, so the matter was transferred here deemed ready. So . . . we're going to start jury selection."

Then there was this colloquy:

"[Defense counsel]: Your Honor, preliminarily, defense would ask for a dismissal [per section] 1385. . . .

"The Court: Why would I do that?

"[Defense counsel]: I don't believe the People are going to have any witnesses at all.

"The Court: I don't know that.

"[Defense counsel]: I know.

"The Court: All I know is I have this case transferred to me. You've announced ready, and the People have been deemed ready. I'm not dismissing this case. So there's no basis for me to dismiss this case [under section] 1385 or any other way."

A panel of prospective jurors was brought in for voir dire. When the trial court introduced the prosecutor to the jury, the prosecutor said, "Your Honor, the People respectfully refuse to participate at this time in this proceeding." At sidebar, the prosecutor confirmed he would refuse to participate. Asked what he would do once jeopardy attached, the prosecutor said, "The same thing. Unless I have an update on witnesses of some sort . . . I cannot participate. I choose not to participate."

The trial court ultimately swore in a panel, gave some preliminary jury instructions, and asked if the prosecutor wanted to make an opening statement. At sidebar, the prosecutor again declined to participate.

In his opening statement, defense counsel told the jury: "You will be in a unique position in a very short period of time. You'll be asked to convict someone who's innocent based on no evidence at all. [¶] Let me say that again. You will not hear from a single witness who saw Mr. Graves do anything wrong. You will not hear from a single witness who will say that Mr. Graves touched them, hurt them, pushed them or even raised his voice to them."

When the trial court invited the prosecutor to call his first witness, the following colloquy occurred at sidebar:

"[The prosecutor]: Once again, the People decline to participate. We respectfully request to trail the case to ten of ten [sic: actually, 30 of 30]. We have no witnesses at this time.

"The Court: The request to trail has already been ruled upon. It's denied. You've been deemed ready. [¶] So you have no witnesses at this point.

"[Defense counsel]: 1118.1

"The Court: From that statement, I suspect you're making a motion for the court to dismiss the matter pursuant to Penal Code [section] 1118.1?*fn6

"[Defense counsel]: Yes, Your Honor.

"The Court: Do you wish to ...

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