(Super. Ct. No. 09F04210)
The opinion of the court was delivered by: Nicholson , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Sandy Lee Morris, Jr., asks us to reverse his conviction of first degree robbery and participating in a criminal street gang because he allegedly was not brought to trial timely. Due to a court clerk's calendaring error, the trial court, without objection from the parties, set a trial date on the 62nd day after defendant was arraigned, two days beyond the 60-day limit established by Penal Code section 1382.*fn1 Defendant claims the court wrongly denied his subsequent motion to dismiss the case and thereby violated his speedy trial right provided him by section 1382. We disagree and affirm the judgment.
The court arraigned defendant, along with two co-defendants, on November 13, 2009. The 60th day following arraignment was January 12, 2010. However, the court clerk wrote on the arraignment minute order that the 60th day after the arraignment was January 14, 2010. The record does not disclose why the clerk made the error.
The court set trial for January 7, 2010. On that day, the prosecution requested the court trail the case for trial to January 12. Defendant did not object, and the court granted the request.
On January 12, defendant and his two co-defendants did not appear for trial. Likewise, defendant's counsel, James Warden, and one of the co-defendant's counsel, Rodrigo Mayorga, did not appear for trial. Instead, Warden and Mayorga arranged for the third defendant's attorney, Clemente Jimenez, to appear for them and their clients.
During the hearing on January 12, the trial court trailed the case to January 14, 2010, two days beyond the 60-day period required under section 1382. The record does not disclose who requested the extension or what, if anything, the court said when it granted the extension. Jimenez asked the court to confirm the last day for trial, and the court did so, again mistakenly confirming that date as January 14. Jimenez did not object to starting trial on that date.
The clerk's handwritten minute order of the January 12 hearing also perpetuated the calendar error, stating January 14 would be the "last day."
On January 14, the case was called for trial, and defendant filed a motion to dismiss pursuant to section 1382. At the hearing on that motion, defendant's counsel, Warden, did not dispute that he had authorized Jimenez to appear in his place to represent defendant in the January 12 proceedings. Jimenez stated he did not object to the court setting trial for January 14 because he thought the court was merely trailing the case within the 60-day period based on the clerk's representation that the 60-day period ended on January 14. The prosecutor also stated the court "said the 14th was the last day," and the parties "were all mistaken as to what the 60th day was and the timeline."
The court denied defendant's motion to dismiss. It did not explain its reasoning. After denying the motion, the court went on to hear ...