(Super. Ct. No. O63880) David W. Stuart, Judge Superior Court County of Los Angeles
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Good cause for the delay of trial exists when an incarcerated criminal defendant is under quarantine to prevent the spread of infectious disease. A contrary holding would require trial court personnel, jurors, and witnesses to be exposed to debilitating and perhaps life threatening illness. Public health concerns trump the right to a speedy trial.
Jesse Alan Tucker appeals his conviction, by jury, of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1))*fn2 and receiving stolen property. (§ 496, subd. (a).) The jury also found true an allegation that appellant had served a prior prison term. (§ 667.5.) Appellant was sentenced to term of four years in state prison. He was awarded 259 days custody credit, consisting of 173 days actual custody and 86 days local conduct credit. He contends the trial court violated his right to a speedy trial by continuing the trial date without his consent and without good cause. He further contends the trial court erred in calculating his local conduct credits and that he is entitled to an additional 86 days' credit. In the unpublished portion of this opinion, we agree with the latter contention and modify the judgment to award appellant an additional 86 days of presentence local conduct credit pursuant to section 4019. As so modified, the judgment will be affirmed.
Facts and Procedural History
Appellant does not challenge any substantive aspect of his conviction, including the substantial evidence supporting it, so it is not necessary to state the facts in detail. Briefly, on July 22, 2009, a pizza delivery person left his car running and the door unlocked while he delivered a pizza to an apartment in Santa Clarita. Appellant got into the car and drove it off while the delivery was in progress. He was arrested the next morning while carrying the key to the stolen car, credit cards issued to the delivery person and the delivery person's driver's license.
On October 22, 2009, the matter was called for trial. The prosecution was unable to proceed and requested that the matter be deemed terminated and appellant re-arraigned on the existing information. Appellant, who was in custody, consented to that procedure. (§ 1387.2.) The matter was continued to November 19, 2009 with December 21, 2009 being the last day for trial.
When the matter was called for trial on December 18, 2009, appellant did not appear. Although he was not himself ill, appellant was in custody at a correctional facility that was under quarantine because a prisoner had contracted the H1N1 flu virus. Appellant's trial counsel did not waive his speedy trial rights. The trial court found "there is good cause for his failure to appear, as he is in custody and quarantined and it is out of medical necessity."
The matter was next called for trial on December 21, 2009. Appellant was again unable to appear because of the quarantine. When the case was called for trial on December 28, 2009, appellant made a motion to dismiss based on the violation of his speedy trial rights. The trial court denied the motion, noting that two prior judges found good cause based on the medical necessity of the quarantine.
Appellant was incarcerated about five weeks after the World Health Organization declared, on June 11, 2009, that a global pandemic of H1N1 influenza was underway. (Centers for Disease Control and Prevention, The 2009 H1N1 Pandemic: Summary Highlights, April 2009-April 2010 (Updated: June 16, 2010) p. 7 (as of June 13, 2011), hereafter, CDC Summary.) The Centers for Disease Control and Prevention (CDC), estimated that at least 55 million people were infected with 2009 H1N1 in the United States between April and mid-December 2009. (CDC, Updated CDC Estimates of 2009 H1N1 Influenza Cases, Hospitalizations and Deaths in the United States, April 2009-April 2010 (May 14, 2010), p. 2 (as of June 13, 2011), hereafter "CDC Estimates".) Although the overwhelming majority of Americans who became ill with H1N1 flu recovered without requiring medical treatment, nearly 250,000 required hospitalization during this period and more than 11,000 died from the disease. (CDC Summary, supra, p. 7; CDC Estimates, supra, p. 2.) A second wave of pandemic activity in the United States peaked during the second week of October 2009. By January 2010, influenza activity had declined to below baseline levels throughout the nation. (CDC Estimates, supra, p. 5.)
In May 2009, the CDC issued interim guidelines for H1N1 infection control in correctional and detention facilities. (CDC, Interim Guidance for Correctional and Detention Facilities on Novel Influenza A (H1N1) Virus, May 24, 2009, (as of June 13, 2011).) Although it did not specifically recommend quarantines, the CDC suggested that inmates with "influenza-like-illness (ILI)" be separated from others and restricted from moving within an institution whenever possible. (Id. at p. 3.) In addition, the CDC recommended that inmates with ILI be restricted from leaving the institution and from transferring to or from another institution for at least 7 days after the onset of ILI symptoms. (Id.) The quarantine at issue here appears to have lasted about 10 days, from December 18 through December 28, 2009.