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Daws v. Superior Court (The People)

California Court of Appeals, First District, Fourth Division

November 14, 2019

BRANDON DAWS, Petitioner,

          Contra Costa County Nos. 41949429, 51907492 Superior Court Trial judge: Honorable Judy Johnson

          Counsel for petitioner: Robin Lipetzky, Galen Currens, Maya Nordberg, and Anthony Gedeon, Public Defenders.

          Counsel for respondent: No appearance.

          Counsel for real party in interest: Diana Becton, District Attorney, Ryan Wagner, Deputy District Attorney, and Amber White, Certified Law Clerk.

          STREETER, J.

         Penal Code section 1382 requires a defendant to provide “proper notice” to all parties before withdrawing a time waiver in open court, but does not specify the type of notice that is “proper” under the statute. (Pen. Code, § 1382, subd. (a)(3)(A).)[1] Faced with this undefined notice provision, the trial court required defendant Brandon Daws to provide two days' written notice before withdrawing his time waiver in open court. Daws seeks writ relief, arguing the oral notice he provided shortly before the calling of his case was “proper notice” under section 1382.

         Seeing no error, we shall deny the writ. We conclude that trial courts have inherent authority to determine by local rule or as a matter of courtroom practice what “proper notice” under section 1382 means, so long as the required notice is consonant with the defendant's right to a speedy trial under article I, section 15 of the California Constitution and the Sixth Amendment of the United States Constitution, as implemented by section 1382. We hold that two days' written notice meets that standard.


         In November 2018, the prosecution filed a misdemeanor complaint charging Daws with violating Health and Safety Code sections 11359, 11360, subdivision (a), and 11377; and Vehicle Code section 14601.5, subdivision (a). At the arraignment hearing, Daws waived his statutory right to be brought to trial within 45 days. (See § 1382, subd. (a)(3).)

         On the morning of February 22, 2019, during an off-the-record conversation in the judge's chambers, Daws's counsel provided oral notice to the court and the prosecutor that his client intended to withdraw his time waiver and invoke his right to a speedy trial on the record when the case was called. During the court hearing that followed shortly afterward, counsel announced Daws was pulling his time waiver and requested a trial date within 30 days. The trial court rejected this request, explaining that Daws must provide two days' written notice to the prosecution before withdrawing his time waiver.

         The court scheduled trial for 80 days later, but invited Daws's counsel to provide two days' written notice to the prosecution if his client wished to insist upon withdrawing his time waiver and having an earlier trial date. Daws declined to do so, made no further attempt to withdraw his time waiver, waited for 30 days to elapse, and then filed a motion to dismiss, arguing that the prosecution failed to bring him to trial within 30 days after his attempt to withdraw his time waiver on February 22. The trial court denied the motion.

         Daws then petitioned for writ relief in the appellate division of the superior court. In a split decision, the appellate division affirmed the order denying Daws's motion to dismiss. The two-judge majority explained that the “proper notice” required by section 1382 “must mean notice sufficient to allow all parties to determine witness availability so that ‘after,' when the trial date is set ‘in open court,' the court and counsel can select a proper trial date - a critical matter when trial is to be set within a short 30-day time frame.”

         The majority took the view that the oral notice provided by Daws was inadequate: “Same-day oral notice right before a district attorney is to appear for the People at a pretrial hearing is notice in form, not substance. It is not calculated or practically effective to allow any meaningful contact with witnesses. A district attorney due in court for multiple cases cannot act on such notice in that moment by contacting witnesses and determining their availability before the hearing. Such ‘notice' thus defeats, not serves, the goal of determining witness availability and responsible trial setting. It is, essentially, for purposes of responsible trial setting, useless notice. We decline to ascribe to the legislature the intent to make ‘proper' synonymous with ‘useless.' ”

         Disagreeing that the requirement of “proper notice” in section 1382 is tied to ascertaining witness availability, the dissenting judge read the proper-notice requirement “simply as the notice required to ensure that the People have actual knowledge that the time waiver is being withdrawn, so that they can ensure that a trial is set within the deadline.” The dissent concluded: “As the record is minimally developed on the sufficiency of the notice on this definition of ‘proper,' [I] would grant the writ and send the case back to the trial court for a new hearing on the motion to dismiss, so the court could decide whether the notice given was ...

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