Smith v. Superior Court

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).) 1 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 *596 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…

I agree with the majority that the trial court properly continued defendant Smith’s trial to a date within the 10-day grace period afforded by Penal Code section 1382 1 in order to preserve joinder. My reasons differ.

The plain language of the relevant statutes, as I read them, supports the trial court’s ruling. Any continuance granted under section 1382 with the express or implied consent of one jointly charged codefendant necessarily includes a 10-day grace period. (See § 1382, subd. (a)(2)(B).) Furthermore, under section 1050.1, the continuance granted to the consenting codefendant applies to the nonconsenting codefendant. As the statute provides, “[i]n any case in which two or more defendants are jointly charged . . . , and the court . . . , for good cause shown, continues the . . . trial of one or more defendants, the continuance shall . . . constitute good cause to continue the remaining defendants’ cases so as to maintain joinder.” (§ 1050.1, italics added.) In other words, the entire “continuance” to which section 1050.1 refers is defined by section 1382 as including a 10-day grace period. The Court of Appeal, which read the statute differently, asserted that nothing in…

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.2 (§ 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…