San Francisco City County Ct.App. 1/5 A124763 Super. Ct. No. 207788
The opinion of the court was delivered by: Cantil-sakauye, C. J.
Under Penal Code section 1382, a defendant charged with a felony is entitled to be brought to trial within 60 days of arraignment unless (1) the defendant has expressly or impliedly consented to having trial set for a date beyond that period, or (2) there is "good cause" for the delay. (Pen. Code, § 1382, subd. (a)(2).)*fn1 When a defendant's trial has been properly continued to a date beyond the 60-day period, section 1382 further provides that the defendant is entitled to be brought to trial on the new trial date "or within 10 days thereafter." (§ 1382, subd. (a)(2)(B).) In the present case, we consider application of these rules when the prosecution seeks to try jointly charged defendants in a single joint trial.
The Court of Appeal acknowledged that when the trial date of one jointly charged defendant is continued beyond the 60-day period for good cause, the trial date of a second jointly charged defendant may also be continued to maintain joinder. It concluded, however, that a further continuance of the first defendant's trial to a date within section 1382's 10-day period is not a basis for continuing the second defendant's trial to maintain joinder. The Court of Appeal held that the second jointly charged defendant has the right to insist that his or her trial commence immediately, requiring either a severance of the charges into two trials or the immediate commencement of a joint trial notwithstanding the 10-day period authorized by section 1382.
As we explain, prior California decisions establish that the substantial state interests in trying jointly charged defendants in a single trial constitute good cause under section 1382 to continue the second jointly charged defendant's trial for a reasonable period of time in order to retain joinder. In addition, the legislative history of section 1382 reflects that the Legislature has determined the 10-day period authorized by section 1382 represents, as a matter of law, a reasonable period of time to bring a case to trial after it has been continued beyond the 60-day period. Therefore, when the circumstances of one defendant cause a trial to be continued beyond the 60-day period, there is good cause to continue a co-defendant's trial to a date within section 1382's 10-day grace period to permit the defendants to be tried jointly.
Because the Court of Appeal reached a contrary conclusion, we reverse the judgment.
I. Facts and procedural history A. Facts
On February 10, 2009, the District Attorney of the City and County of San Francisco filed an information jointly charging Donald Smith (Smith) and Christopher Sims (Sims) with one felony count of first degree residential burglary.*fn2 (§ 459.) They were arraigned the next day. Smith did not waive his statutory right to be brought to trial within 60 days of his arraignment. (See § 1382, subd. (a)(2).) Therefore, the last day for the case to be brought to trial within the 60-day period set forth in section 1382 was Monday, April 13.
Sims's counsel was ill on April 13. Over Smith's objection, the trial court ruled that counsel's illness constituted good cause to continue the trial of both defendants past the 60th day, and ordered the case to trail day to day. Sims's counsel remained ill on April 14, and the trial court found good cause to continue the case to April 16, on which date the court continued it again to April 17. Smith objected to both of these continuances. On Friday, April 17, Sims's counsel appeared and reported to the court that he would be recovered adequately to try a case "in a relatively short period of time." In response, the court continued the case to Wednesday, April 22, again over Smith's objection.
It is unclear what occurred on April 22, but on April 23, the trial court confirmed that Sims's counsel would be recovered and ready to proceed to trial on Monday, April 27. The court stated that that circumstance "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." Smith's counsel responded, "that would be over our objection."
On April 27, in the absence of Smith's counsel, the trial court continued the matter to April 28. The prosecutor then asked Sims's counsel, "can we put that matter over until the 28th? It's a no-time waiver." The court stated, "It's not past the last day," and Sims's counsel added, "There was a ruling. The last day is May 7th." The prosecutor responded, "As long as that's clear. [Smith's counsel] has been objecting all this time on [Smith's] matter." The court stated, "I have it listed as May 7th as the last day." Shortly thereafter, Smith's counsel appeared and objected to the continuance.
When the case was called on April 28, the prosecutor noted that Smith's counsel "has been here every day to object." The court stated, "Let's roll it over until tomorrow." Smith unsuccessfully moved to dismiss the charges.
On May 1, Smith sought a writ of mandate in the Court of Appeal to stay further trial court proceedings against him. The Court of Appeal issued an order to show cause and subsequently directed the superior court to enter an order dismissing the information pending against Smith. We granted the People's petition for review, and held the case pending our consideration and resolution of a related speedy-trial issue in the case of People v. Sutton (2010) 48 Cal.4th 533 (Sutton). Thereafter, we transferred the case to the Court of Appeal with directions to reconsider the cause in light of Sutton.
In Sutton, supra, 48 Cal.4th 533, we addressed the right to a speedy trial under section 1382.*fn3 In Sutton, appointed counsel for one of two co-defendants was unexpectedly engaged in another trial on the 60th day after the defendants' arraignment, but anticipated that the other trial would be completed very shortly. Based on these circumstances, the trial court found good cause to continue the trial of both defendants on a day-to-day basis, over the defendants' repeated objections, to the 66th day after arraignment, at which time counsel who had been engaged in another trial informed the court that his conflicting trial was completed. (Id. at pp. 542-544.) We granted review in Sutton to address whether counsel's engagement in another trial constituted good cause for the continuance.
We observed in Sutton that "a number of factors are relevant to a determination of good cause" under section 1382 to continue a trial beyond the 60-day period: "(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay. [Citations.] Past decisions further establish that in making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, 'applying principles of common sense to the totality of circumstances . . . .' [Citations.] The cases recognize that, as a general matter, a trial court 'has broad discretion to determine whether good cause exists to grant a continuance of the trial' [citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an 'abuse of discretion' standard." (Sutton, supra, 48 Cal.4th at p. 546, fn. omitted.)
With respect to the defendant whose counsel had been engaged in another trial, we distinguished a continuance resulting from unforeseen consequences from a continuance resulting from the state's failure to provide enough public defenders, and concluded that the trial conflict in Sutton "was the type of contingency that may occur even in a reasonably funded and efficiently administered trial court system that handles a large volume of criminal cases." (Sutton, supra, 48 Cal.4th at p. 554; see People v. Johnson (1980) 26 Cal.3d 557 [delay resulting from the failure of the state to provide enough public defenders is not good cause for a continuance].)
With respect to the defendant whose counsel was ready to proceed to trial within the 60-day period, we relied first on section 1050.1 in concluding that the continuance was permissible as to that defendant. Section 1050.1 provides that, when the trial of one jointly charged defendant is continued for good cause, "the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants' cases so as to maintain joinder." We concluded that because the continuance of the first defendant's ...