California Court of Appeals, First District, Fourth Division
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.
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).) 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.
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.
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).)
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.
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.
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
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.'
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 ...