Baustert v. Superior Court

The parties were sent to the master calendar department and appeared before Judge Peter C. Deddeh. The People brought a third motion to continue trial before Judge Deddeh. Tracy A. Rogers, the deputy city attorney, admitted to Judge Deddeh that the People had already released Officer Turi from the original subpoena and issued a new subpoena for January 3, 2005. Rogers also verified that the People had three other police officer witnesses available as witnesses for trial on December 27. Baustert opposed any continuance. Judge Deddeh granted the third motion to continue and “trailed” the trial to January 3, 2005.

In granting the motion, Judge Deddeh stated that he believed he had 10 days in which to trail the trial. He apparently based this assumption on the erroneous belief that Baustert’s time waiver remained in effect, as stated in the minutes of the November 29 hearing. Alternatively, he justified the decision on a belief that “[ujnless there is a specific number of days that the defense has agreed to, the Penal Code section says that I have ten days to get the case out.” Baustert’s attorney, Deputy Public Defender Kathleen Lee, stated that the time waiver had been pulled at the November 29 hearing. However, Judge Deddeh responded, “[wjhether it was pulled or not, this is a—I’m not saying that he is waiving time until the 3rd. What I am saying is when he waived time until the 27th, that unless there is a specified number of days remaining, the code says that there is a ten day trailing period, whether a misdemeanor or a felony.”

When the parties appeared on January 3, 2005, before Judge Deddeh for assignment to a trial judge, Baustert moved to dismiss the charges against him on the basis that there was no good cause shown to continue the trial date beyond December 27, and therefore his statutory right to a speedy trial was violated. At this hearing, Attorney Lee provided Judge Deddeh with a transcript of the November 29 hearing, showing that Baustert had in fact withdrawn his general time waiver. Notwithstanding this information, Judge Deddeh denied Baustert’s motion to dismiss. He based his ruling on the ground that even though Baustert had pulled his general time waiver, the court still had a 10-day grace period in which to get the case to trial. Alternately, he stated that he believed there was good cause for a continuance based on Officer Turi’s unavailability as a witness on December 27. Judge Deddeh also denied Baustert’s request for a one-day stay to file a writ. Instead, he sent the case to Judge Howard H. Shore for trial. Judge Shore granted Baustert’s request for a stay to file a writ in the appellate division, which Baustert filed on January 4, 2005. The appellate division issued a stay and requested a response to the writ petition, but ultimately denied the writ. The instant writ petition followed.

45-day trial requirement entitles the court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. If the defendant, after proper notice to all parties, later withdraws his or her waiver, the defendant shall be brought to trial within 30 days of the date of that withdrawal. If a general time waiver is not expressly entered, subparagraph (B) shall apply. [1] (B) The defendant requests or consents to the setting of a trial date beyond the 30-day or 45-day period. In the absence of an express general time waiver from the defendant, the court shall set a trial date. Whenever a case is set for trial beyond the 30-day or 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter. . . .” (Italics added.)

Section 1382(a)(3)(A) provides that an action shall not be dismissed where the defendant enters a general waiver of the statutory speedy trial deadline set forth in section 1382, subdivision (a)(3). However, where the defendant withdraws such a time waiver with proper notice to all parties, “the defendant shall be brought to trial within 30 days of the date of that withdrawal.” (§ 1382(a)(3)(A).) There is no 10-day “grace period” following expiration of the 30-day time period to bring a defendant to trial under that section. (Ibid.) By contrast, under section 1382, subdivision (a)(2)(B), where a defendant consents to a trial date beyond the deadlines set forth in section 1382, subdivision (a)(2) and (3) without entering a general time waiver, the court has a 10-day grace period within which it can bring the case to trial after the date consented to by the defendant. (See § 1382, subd. (a)(2)(B) [felony cases] & (3)(B) [misdemeanor cases].) Section 1382(a)(3)(A) therefore mandates dismissal in all cases where a misdemeanor defendant is not brought to trial within 30 days of withdrawing a general time waiver, unless good cause is shown for the delay.

Baustert withdrew his general time waiver at the November 29 hearing. Thus, under section 1382(a)(3)(A), the People were required to bring Baustert to trial by December 29. There was no 10-day grace period as the court believed, because that period only applies to section 1382(a)(3)(B), where a defendant requests or consents to a trial date beyond the statutory deadline. Accordingly, unless good cause existed for a continuance of trial from December 27 to January 3, the charges against Baustert must be dismissed.

C. Good Cause Analysis

As detailed above, section 1382, subdivision (a), provides in part that a case not brought to trial within the statutory deadline must be dismissed “unless good cause to the contrary is shown.”

The unavailability of a witness constitutes good cause for a continuance where five criteria are satisfied: (1) the party seeking the delay has exercised due diligence in securing the attendance of the witness at trial by legal means, (2) the testimony of the witness is material, (3) the testimony is not merely cumulative, (4) the attendance of the witness can be obtained within a reasonable time, and (5) the facts about which the witness is expected to testify cannot otherwise be proven. (Owens v. Superior Court (1980) 28 Cal.3d 238 , 250-251 [ 168 Cal.Rptr. 466 , 617 P.2d 1098 ] (Owens).) The party seeking the continuance has the burden of proving that each of the above elements is met. (Ibid.)

“The failure to attempt to secure the presence of a witness for whom a continuance is sought indicates a lack of due diligence.” (Pickett v. Municipal Court (1970) 12 Cal.App.3d 1158 , 1162-1163 [ 91 Cal.Rptr. 315 ] (Pickett).) Moreover, the fact that a witness will be on vacation on the date set for trial does not by itself constitute good cause for a continuance. (Cunningham v. Municipal Court (1976) 62 Cal.App.3d 153 , 155-156 [ 133 Cal.Rptr. 18 ] (Cunningham).) This is because a defendant’s right to a speedy trial may not be violated solely to serve the convenience of the prosecution’s witnesses. (Ibid.; Pickett, supra, 12 Cal.App.3d at p. 1162; see also Owens, supra, 28 Cal.3d at p. 252, fn. 14.) For example, in Pickett, the prosecutor’s belief that several witnesses might be out of town or teaching summer school on the date set for trial was insufficient to constitute good cause for a continuance past the statutory speedy trial deadline where no attempt was made to secure the witnesses’ attendance by subpoena or other legal means. (Pickett, supra, 12 Cal.App.3d at p. 1162.)

Similarly, in Cunningham, the failure of the prosecution to issue a subpoena compelling a police officer witness’s attendance at trial precluded a finding of due diligence and therefore no good cause existed to continue the trial beyond the statutory speedy trial deadline. (Cunningham, supra, 62 Cal.App.3d at pp. 155-156.) The prosecutor knew the witness was going to be on vacation on the date set for trial, but declined to issue a subpoena compelling the witness’s attendance at trial. (Id. at p. 156.) The court noted that the witness should have been subpoenaed before he left on vacation. In addition, because there was no evidence that the witness was out of the state and therefore out of the court’s jurisdiction, the court stated that a subpoena could have been issued despite the witness’s vacation having already begun. (Ibid.)

In this case, the People’s motion to continue was based on a declaration stating that Officer Turi would be on vacation from December 20

through December 29. The declaration asserted that the People “exercised due diligence” in attempting to secure Officer Turi’s attendance at trial, in that the subpoena was served on December 1 and notice of Officer Turi’s unavailability was received December 6. However, while Officer Turi was originally served with a subpoena to appear for trial on December 27, the People voluntarily released her from the subpoena and unilaterally served her with another one requiring her appearance on a date past the statutory deadline. Furthermore, the declaration gave no indication that Officer’s Turi’s vacation placed her outside of the court’s jurisdiction at the time of trial on December 27. Thus, because the People allowed Officer Turi to proceed with her vacation, instead of requiring her appearance at trial pursuant to the subpoena, there was no good cause shown for a continuance. (See Cunningham, supra, 62 Cal.App.3d at pp. 155, 156 [holding police officer witness’s declaration, stating that he would be on vacation and out of Los Angeles County on the date set for trial, insufficient to constitute good cause].) Both Pickett, supra, 12 Cal.App.3d at page 1162, and Cunningham, supra, 62 Cal.App.3d at page 156, require a genuine attempt to secure a witness’s attendance in court on the date set for trial, notwithstanding the witness’s plans to be on vacation. Therefore, the due diligence requirement of Owens was not satisfied when the People decided to accommodate Officer Turi’s vacation plans.

The People contend that Shane, supra, 115 Cal.App.4th 196 , supports the proposition that a witness’s vacation alone constitutes good cause for a continuance. However, Shane does not stand for that proposition. Rather, the Court of Appeal there rejected a defendant’s argument that as a matter of law the People were required to subpoena a police officer witness more than four days before trial. (Id. at pp. 203, 205.) The Court of Appeal held that the prosecutor’s actions were reasonable given that (1) the district attorney first learned of the officer witness’s unavailability four days before trial when it attempted to serve the officer, and (2) to require prosecutors to anticipate in advance a witness’s unavailability would require them to “become clairvoyants.” (Ibid.)

However, this is not a case in which the People attempted to subpoena a witness for trial, but were unable to do so because the witness was already on vacation or otherwise unavailable. Here, the People had Officer Turi under subpoena, but voluntarily released her before the trial date. We are thus presented with facts similar to those in Pickett and Cunningham. In those cases, the People did not attempt to subpoena the witnesses to attend on the dates set for trial, but instead moved to continue the trials to times more convenient for the witnesses. (Pickett, supra, 12 Cal.App.3d at p. 1162; Cunningham, supra, at pp. 155-156.)

DISPOSITION

Let a writ of prohibition issue preventing the court from taking any further action except to dismiss the charges against Baustert. The stay issued by this court on February 3, 2005, is vacated. The opinion is final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).)

Huffman, Acting P. J., and Aaron, J., concurred.