(San Francisco City and County Super. Ct. No. 207788). Ksenia Tsenin, Judge.
The opinion of the court was delivered by: Bruiniers, J.
(opn. on remand from Cal. Supreme Court following grant of review)
CERTIFIED FOR PUBLICATION
Donald Smith contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss. We agreed and granted the requested relief. The People petitioned for review. The California Supreme Court directed this court to vacate our prior decision and reconsider in light of People v. Sutton (2010) 48 Cal.4th 533 (Sutton). We conclude that Sutton does not alter the statutory analysis on which our prior decision was based. Accordingly, we grant the relief requested by Smith.
I. Factual and Procedural Background
On February 10, 2009,*fn1 an information was filed, jointly charging Smith and Christopher Sims with one felony count of first degree residential burglary (Pen. Code, § 459).*fn2 Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived. April 13 was calculated as the last day for trial. The court was informed on April 10 that counsel for co-defendant Sims was ill and unavailable for trial. As to Smith, the court indicated its intent to sever or dismiss because the last day for trial was the following Monday, April 13. However, the People argued that good cause existed to continue the case for both defendants and not to effect a severance.
On April 13, the last statutory day for trial, the court was informed that Sims's counsel remained ill and unavailable. Counsel for Smith objected to any continuance as to his client. The court, however, found good cause to continue the trial for both defendants, noting: "Greenberger [v. Superior Court (1990) 219 Cal.App.3d 487 (Greenberger)] says essentially this is an issue [of] whether a joinder overrides defendant's right to a speedy trial. Greenberger says if the only reason to continue a case past the last day is to keep the cases joined, that's not good cause under [section] 1382.... But another reason, like, for example, one of the attorneys needs more time to investigate, then -- I'm going to interpret that as the situation here -- where one attorney is ill and not able to come to court, that does constitute good cause to continue this past the last day for the co-defendant, as well as the defendant, who is represented by the ill attorney." The court further indicated: "Today is pretty much still the last day. We will trail it day by day. I have to find out what [Sims's counsel's] condition is, when he can be able to come back, and when he will be able to tell me: Yes, I'm ready to go to trial. [¶] So I think the only safe thing to do is trail it day by day and put it over to the 14th."
On April 14 and April 16, the court made further findings of good cause to continue the trial of both defendants, over Smith's objection, due to the continuing unavailability of Sims's attorney. On April 17, Sims's counsel appeared and stated that he anticipated being ready to try the case in a week. The court found good cause for continuing the matter to April 22, again over Smith's objection, but also indicated: "What we have to do, we have to be sure that I have counsel who's available, in the sense of well enough to do it. But then I will kick it to the last day, and I have to find a courtroom."*fn3
On April 23, Sims's counsel remained ill but told the court he would be ready to try the case on April 27. The court stated: "For the record, [Sims's counsel] will be available and ready to try this and fully recovered on Monday, which means the last day for trial, according to case law, would be 10 days after Monday, April 27th. [¶] So by my calculations, May 7th would be the last day." (Italics added.) Smith maintained his objection to further continuances.
On April 27, the court, without discussion and over Smith's objection, "rolled" the case over until April 28. The matter was recalled later that same day, when Smith's counsel was not present, and the following exchange occurred on the record:
[THE PEOPLE]: Can we recall one more matter? Line 402. It's the Sims matter. [Sims's counsel], can we put that matter over until the 28th? It's a no-time waiver. So I need some clarification on the record from [Sims's counsel].
THE COURT: [Sims's counsel], on Christopher Simms [sic] we rolled it over until tomorrow. [The prosecutor] needs clarification.
[THE PEOPLE]: Well, it's past the --
[SIMS'S COUNSEL]: No. No.
[THE PEOPLE]: -- last day. I just want to --
THE COURT: It's not past the last day.
[SIMS'S COUNSEL]: There was a ruling. The last day is May 7th.
[THE PEOPLE]: Okay. As long as that's clear. [Smith's counsel] has been objecting all this time on the co-defendant matter.
THE COURT: I have it listed as May 7th as the last day.
On April 28, Smith's counsel moved to dismiss. Although the record before us does not include an explicit ruling on the motion, the ...