People v. Bilbrey

habeas order that "grants relief other than a discharge or release from custody." (See Stats. 1957, ch. 1561, § 1.) The report of the Legislative Counsel on the 1957 amendment stated that it "Grants to the people the right to appeal from a final order of a superior court granting all or any part of the relief sought in a habeas corpus proceeding, rather than only from an order discharging defendant" and "Provides that if the order grants relief other than a discharge from custody, the trial court or court in which the appeal or petition for hearing is pending may, upon application by the people, in its discretion, and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter." (Legis. Counsel Rep. on Sen. Bill No. 439 (1957 Reg. Sess.).)

Prior to the 1957 amendment, the issue had arisen whether the People could "appeal from an order on habeas corpus which directs that a petitioner be granted relief but which does not order his release from custody." ( In re Chessman (1955) 44 Cal.2d 1 , 4, 279 P.2d 24 .) In Chessman , the petitioner argued they could not, claiming the term "discharge" as used in section 1506 did not include relief "short of effecting their release from illegal custody."

habeas relief constitute relief "other than release or discharge" and are, therefore, eligible for a stay pending appeal under section 1506. (See In re Stinnette (1979) 94 Cal.App.3d 800 , 155 Cal.Rptr. 912 [habeas order effectively releasing respondent on parole]; In re Brindle (1979) 91 Cal.App.3d 660 , 154 Cal.Rptr. 563 [order granting incarcerated persons access to public defenders]; In re Fain (1976) 65 Cal.App.3d 376 , 135 Cal.Rptr. 543 [order granting determination of prison term]; and In re Muszalski (1975) 52 Cal.App.3d 475 , 125 Cal.Rptr. 281 [order granting inspection of confidential documents in Department of Corrections file].) One such case involved the People's appeal from a habeas

denied or no request for stay is made, then the appeal has no effect on the

not be interpreted to confer jurisdiction on the trial court to execute a habeas order granting petitioner a new trial pending the People's appeal from that order. We discern no such limits on the scope of section 1506 from the statute itself, its legislative history, or the applicable-albeit limited-case law.

We recognize that the general rule that an appeal automatically stays the trial court judgment serves the purpose of preventing the trial court from interfering with the appellate court's jurisdiction and rendering the appeal moot. Our interpretation and application of section 1506 does not contravene that purpose. If the People and the trial court had proceeded to retry Bilbrey while the People's appeal from the order granting habeas corpus was pending, this would have interfered with this court's jurisdiction. Had that occurred, we would have considered the appeal just as we have done, and if we had reversed the order granting Bilbrey relief on the ground of ineffective assistance of counsel, the original judgment against Bilbrey would have been reinstated and Bilbrey returned to custody to serve his original sentence. The speedy trial violation would become moot because the grant of new trial would be reversed. While we have reached a different result in the habeas appeal, the People have not been prevented from prosecuting that appeal and we have not been impeded in considering it.

Thus, we agree with Bilbrey that, absent a stay pending resolution of the People's appeal, the trial court retained jurisdiction over his case, including his motion to dismiss. The language and context of section 1506 necessarily imply that a court that grants habeas relief other than a discharge from custody retains jurisdiction to undertake further proceedings despite the pending appeal unless and until the People request and the court grants a stay. Here, the People did not seek a stay, meaning the trial court retained jurisdiction to rule on Bilbrey's motion to dismiss. We turn, then, to consider the propriety of the trial court's order granting that motion.

B. The Section 1382 Dismissal Order Was Proper.

We review a trial court's ruling on a motion to dismiss pursuant to section 1382 of the Penal Code for abuse of discretion. ( People v. Hajjaj (2010) 50 Cal.4th 1184 , 1197-1198, 117 Cal.Rptr.3d 327 , 241 P.3d 828 .)

a writ or order granting new trial was added to the statute after the courts in Sykes v. Superior Court (1973) 9 Cal.3d 83 , 106 Cal.Rptr. 786 , 507 P.2d 90 ( Sykes ) and People v. Guaracha (1969) 272 Cal.App.2d 839 , 77 Cal.Rptr. 695 held that felons who are afforded habeas corpus relief granting a new trial are entitled to a speedy retrial. (5 Witkin, Cal. Crim. Law (4th ed. 2012) Criminal Trial, § 338, p. 568; see Stats. 1973, ch. 847, § 1.)

The statutory speedy trial rights provided in section 1382 and related sections of the Penal Code " 'are supplementary to and a construction of' the state constitutional speedy trial guarantee." ( People v. Martinez (2000) 22 Cal.4th 750 , 766, 94 Cal.Rptr.2d 381 , 996 P.2d 32 .) "[S]ection 1382 constitutes a legislative endorsement of dismissal as a proper judicial sanction

from the 60-day provision those defendants who establish their right to a retrial by way of a writ as distinguished from those who establish such right by other legal processes." ( Ibid . ) Upon concluding the People had failed to show good cause for the delay in retrying Sykes, the court issued a peremptory writ of mandate directing dismissal of the charges against him. ( Id. at pp. 94-95, 106 Cal.Rptr. 786 , 507 P.2d 90 .)

We agree there is no indication the People had appealed the order granting Sykes habeas relief, but that fact was immaterial to the Sykes court's determination. As Bilbrey suggests, the effect of an appeal on the 60-day period was simply not before the court. Thus, Sykes lends no support to the People's contention that the 60-day provision does not apply when they have appealed an order granting habeas relief. ( People v. Jennings (2010) 50 Cal.4th 616 , 684, 114 Cal.Rptr.3d 133 , 237 P.3d 474 [" 'cases are not authority for propositions not considered' "].)

Rather, the import of Sykes was to make clear that a habeas petitioner has a constitutional speedy trial right that applies after a trial court has granted a new trial as relief on a petition for habeas corpus. Sykes

the construction employing that different meaning is to be favored' "].)

In the alternative, the People argue that their pending appeal in case No. A150273 constituted good cause to go beyond the 60-day statutory period. "What constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court. [Citations.] In reviewing trial courts' exercise of that discretion, the appellate courts have evolved certain general principles. The courts agree, for example, that delay caused by the conduct of the defendant constitutes good cause to deny his motion to dismiss. Delay for defendant's benefit also constitutes good cause.

have no basis for complaining that the statutory period for bringing the case to trial was not

to state prison for an aggregate term of 11 years to life. We affirmed the judgment on direct appeal. ( People v. Bilbrey (May 14, 2013, A129236), 2013 WL 1962969 [nonpub. opn.].)

In November 2016, the trial court granted Bilbrey's petition for a writ of habeas corpus, based upon the ineffectiveness of trial counsel, and ordered a new trial. The

A151401. The Trial Court Retained Jurisdiction to Rule on Bilbrey's Motion to Dismiss, and the People Have Not Shown the Trial Court Abused its Discretion by Granting the Motion.

The People also appeal from the trial court's order granting Bilbrey's post-habeas motion to dismiss for violation of his right to a speedy trial under section 1382. They argue their appeal in case No. A150273 divested the trial court of jurisdiction to rule on Bilbrey's motion to dismiss because the motion was a "matter related to, embraced by, or affected by" the appeal from the habeas order granting Bilbrey a new trial. They also argue section 1506 of the Penal Code, which authorizes their appeal from the habeas order, did not require them to seek a stay of the order pending their appeal because "the trial court effectively ordered him discharged or released." As to the merits of the dismissal order, the People maintain dismissal was improper both because an appealed habeas order is not final and because the pending appeal constituted good cause to delay Bilbrey's retrial beyond the 60-day deadline.

In response, Bilbrey contends the trial court retained jurisdiction to rule on his motion to dismiss because the People failed to seek a stay of the habeas order as required by section 1506. The People were required to request a stay under that statute, Bilbrey argues, because the habeas order granted him " 'relief other than a discharge or release from custody.' " On the merits, Bilbrey argues dismissal was required because his retrial did not begin within 60 days of the November 21, 2016 habeas order as required by section 1382, and he notes the absence of authority indicating that a pending appeal, by itself, constitutes good cause to delay trial beyond the statutory deadline.

The parties do not dispute that Bilbrey has remained in custody pending the People's appeal from the habeas order granting him a new trial. Because part I of our Discussion concluded that Bilbrey was entitled to a new trial only on his attempted murder conviction, our analysis in this part is necessarily limited to whether dismissal of that count was lawful.

A. The Trial Court Retained Jurisdiction to Rule on the Motion to Dismiss

We review de novo the People's claim that the trial court lacked jurisdiction to grant Bilbrey's section 1382 motion. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116 , 1123, 50 Cal.Rptr.3d 903 [applying de novo standard of review in determining whether trial court had jurisdiction to rule on post-judgment sanctions motion].) Questions of statutory interpretation are

also reviewed de novo. ( John v. Superior Court (2016) 63 Cal.4th 91 , 95, 201 Cal.Rptr.3d 459 , 369 P.3d 238 .)

1. Analysis

"The general rule is that ' " '[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur ' [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.]" ' " ( People v. Tulare County Superior Court (Gregory ) (2005) 129 Cal.App.4th 324 , 329, 28 Cal.Rptr.3d 276 ( Gregory ), quoting People v. Flores (2003) 30 Cal.4th 1059 , 1064, 135 Cal.Rptr.2d 63 , 69 P.3d 979 ( Flores ).) The purpose of this common law rule " ' "is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from

( Chessman , at p. 5, 279 P.2d 24 .) The court interpreted "discharge" broadly to encompass not only discharge from imprisonment or restraint but also discharge "from illegal conditions of restraint although not from all restraint." ( Id. at p. 6, 279 P.2d 24 .) Nonetheless, apparently recognizing the statutory reference to "discharge" was ambiguous, the State Bar proposed the 1957 amendment to "clarify the law" by adding language allowing the People to appeal from an order "granting any relief sought in a petition for writ of habeas corpus even though the defendant is not discharged from custody." (32 Journal of the State Bar of California (Jan.-Feb. 1957) 1957 Legislative Program, pp. 21-22.) The State Bar explained that the statute was amended to codify the decision in Chessman . (Fourth Progress Rep. to the Legis. by the Sen. Interim Judiciary Com., Rep. on Sen. Bill No. 439 (1957 Reg. Sess.) p. 354.)

More fundamentally here, section 1506 also now distinguishes between the effects of the People's appeal from a habeas order granting release or discharge and their appeal from an order granting "other" relief. Notably, in both situations and as with sections 1242 and 1243 in the context of direct appeals, section 1506 allows the prevailing habeas petitioner to enjoy the benefits of a favorable trial court disposition during the pendency of the appeal, subject to certain limitations. Specific to our purpose here, on appeal from such an order that "grants relief other than a discharge or release from custody" the trial or appellate court may, "upon application by the people, in its discretion, and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter." ( § 1506.) Thus, a defendant who is granted partial relief-something short of release or discharge-may benefit from execution of the favorable order pending the People's appeal unless the trial or appellate court exercises its discretion to grant a stay requested by the People. The question before us is what effect the People's appeal has on execution of the order granting habeas relief if, as here, the People do not request and receive a stay.

The parties cite no authority previously interpreting or applying the stay provision of section 1506, and our research discloses none that squarely answers the question before us. As noted by the People at oral argument, some courts have referred to section 1506 in the limited context of noting, mostly impliedly, that certain forms of

habeas corpus to a defendant who will remain in state custody. The People's interpretation of release and discharge as all-encompassing would render the language "otherwise granting all or any part of the relief sought" and "relief other than a discharge or release from custody" entirely superfluous, again violating a core principle of statutory construction.

We are also not persuaded by the People's argument that section 1506 should

for violation of the constitutional guarantee of a speedy trial and as a legislative determination that a trial delayed more than 60 days is prima facie in violation of a defendant's constitutional right." ( Sykes , supra , 9 Cal.3d at p. 89, 106 Cal.Rptr. 786 , 507 P.2d 90 .)

Here, the People first argue dismissal was improper because the 60-day period for Bilbrey to be retried has not begun to run, and will not do so unless and until the habeas order becomes final. They rely on Sykes , suggesting that the time period runs only when the People do not appeal. The People suggest their appeal of the habeas order tolled the 60-day period pending the outcome of their appeal. We find no support for this proposition in Sykes .

In Sykes , our Supreme Court considered whether the 60-day period applied where a petitioner had obtained relief by way of a writ of habeas corpus rather than one of the procedures described in the express provisions of the then current version of section 1382 (i.e., after a mistrial, entry of an order granting a new trial or filing of a remittitur in the trial court after a conviction has been reversed on appeal). ( Sykes , supra , 9 Cal.3d at pp. 88-90, 106 Cal.Rptr. 786 , 507 P.2d 90 .) Invoking the self-executing provisions of the California Constitution, which independently guarantee the right to a speedy trial, the court noted that a "person who has been released on a writ and ordered to be rearraigned for plea and retried on the original charges has the same interest in a speedy trial as do persons whose circumstances come within the express provisions of [ section 1382 ]." ( Sykes , at p. 92, 106 Cal.Rptr. 786 , 507 P.2d 90 .) Thus, the court concluded, there was "no reasonable justification for excluding

recognized the right to a speedy trial as a fundamental right secured by the United States and California Constitutions, noting that it embodies a policy to expedite criminal proceedings "to the greatest degree that is consistent with the ends of justice." ( Sykes , supra , 9 Cal.3d at p. 88, 106 Cal.Rptr. 786 , 507 P.2d 90 .) As we have noted, the Legislature amended section 1382 in 1973 to expressly cover the situation addressed in Sykes by specifying the time limits on retrial "after the issuance of a writ or order which, in effect, grants a new trial." (5 Witkin, Cal. Crim. Law (4th ed. 2012) Criminal Trial, § 338, p. 568.)

Other than Sykes , the People cite no authority for the proposition that the 60-day statutory period was tolled by their habeas appeal. Given our preceding analysis of section 1506 and the fundamental nature of a criminal defendant's right to a speedy trial, we are not inclined to adopt such a position here. And there is another reason to reject the tolling argument, which concerns the language of section 1382. With respect to mistrials and orders granting new trials, if an appeal is not taken, or if an appeal from such orders is taken , subdivision (a)(2) provides that the 60-day time period shall run from the date "after the mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court ." ( § 1382, subd. (a)(2) [quoted in full in note 15, ante ], italics added.) In addressing the "issuance of a writ or order which, in effect, grants a new trial," however, the statute makes no reference to an appeal being taken or to the filing of a remittitur, but specifies only that the time period runs from the date "notice of the writ or order is filed in the trial court and served upon the prosecuting attorney." While the Legislature thus provided in effect that the appeal from a trial court order declaring a mistrial or granting new trial would toll the speedy trial period, it provided no such tolling in the case of an appeal from a grant of a writ. If it had intended to toll the speedy trial period for writs when it amended the statute to include them, it presumably would have employed language similar to that already contained in the statute in regard to mistrials and orders granting a new trial. (See Kray Cabling Co. v. County of Contra Costa (1995) 39 Cal.App.4th 1588 , 1593, 46 Cal.Rptr.2d 674 [" 'Where the same word or phrase might have been used in the same connection in different portions of a statute but a different word or phrase having different meaning is used instead,

Finally, delay arising from unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses constitutes good cause to avoid dismissal. Delay attributable to the fault of the prosecution, on the other hand, does not constitute good cause. Neither does delay caused by improper court administration." ( People v. Johnson (1980) 26 Cal.3d 557 , 570, 162 Cal.Rptr. 431 , 606 P.2d 738 , fns. omitted.)

In support of their good-cause argument, the People rely on cases in which courts considered whether an appeal may be valid justification for a delay in bringing a defendant to trial. (See United States v. Loud Hawk (1986) 474 U.S. 302 , 106 S.Ct. 648 , 88 L.Ed.2d 640 ; People v. Superior Court (Arevalos ) (1996) 41 Cal.App.4th 908 , 48 Cal.Rptr.2d 833 ; People v. Hernandez (1985) 166 Cal.App.3d Supp. 1 , 212 Cal.Rptr. 563 ; and Arnold v. Superior Court (1971) 16 Cal.App.3d 984 , 94 Cal.Rptr. 589 .) Some of these and other cases suggest that the People's pending appeal can constitute good cause for delaying trial beyond the statutory period, or at least constitute a substantial factor in support of a good cause finding. (See People v. Superior Court (Gonzales ) (1991) 228 Cal.App.3d 1588 , 279 Cal.Rptr. 679 [concluding dismissal of felony information under section 1382 was not warranted because the People had sought interlocutory appellate review of trial court's refusal to honor their peremptory challenge under section 170.6 of the Code of Civil Procedure ]; Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235 , 242, 134 Cal.Rptr. 314 [concluding dismissal under section 1382 was not warranted because section 1538.5, subdivision (l) had automatically stayed trial and extended the section 1382 time period to allow the People to file a notice of appeal, noting "[a]ny other result would vitiate one of the underlying purposes of section 1538.5, which is to allow the People to seek appellate review of an adverse ruling on the admissibility of evidence"].)

But it was the People's burden to seek a stay by demonstrating good cause in a motion or application for a stay ( Batey v. Superior Court (1977) 71 Cal.App.3d 952 , 957, 139 Cal.Rptr. 689 ) and to seek such relief prior to the expiration of the 60-day speedy trial deadline. Though the record reflects the trial court was aware of the People's pending appeal in case No. A150273, it also reflects the People did not provide the court with any authority supporting the proposition that their appeal justified the delay that would result from a stay. They argued only that forcing them to retry the case would deprive them of their remedy by way of appeal, which as we have already indicated is not accurate. (See pp. 391-92, ante .) If the People had sought a stay and demonstrated it would be burdensome to require them to retry the case, they were likely to succeed on appeal, and the burden on the People outweighed any possible prejudice to Bilbrey from delaying the retrial, the court might well have granted the stay. However, having failed to seek a stay pending appeal or to show good cause for a stay, the People

tolled, and as a result their further failure to bring the case to trial within the statutory period required the trial court to dismiss the case.

In short, we conclude that the People have not met their burden to show the trial court abused its discretion in dismissing the attempted murder charge under section 1382. In part I of the Discussion section, however, we concluded Bilbrey was entitled to a new trial only as to that conviction. Accordingly, only the attempted murder count warranted dismissal under section 1382, and the trial court erred in dismissing the other charges.

DISPOSITION

We affirm the November 21, 2016 order granting Bilbrey's petition for writ of habeas corpus only as to Bilbrey's conviction for attempted murder. We also affirm the March 22, 2017 order granting Bilbrey's motion to dismiss as to that charge.

We reverse the order granting habeas corpus and the order granting Bilbrey's motion to dismiss as to Bilbrey's convictions for aggravated mayhem, assault with a deadly weapon and battery with great bodily injury. We reduce the conviction for aggravated mayhem under section 205 to one for general mayhem under section 203 and reinstate Bilbrey's convictions for assault with a deadly weapon and battery with great bodily injury. We remand to the trial court for resentencing on those counts.

Our May 2, 2017 stay of the dismissal order will dissolve upon issuance of the remittitur.

We concur.

KLINE, P.J.

RICHMAN, J.