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Karen Nash,
John Hamilton Scott,
(State Bar No. 58258)
Deputy Public Defenders
Appellate Branch
320 West Temple Street, Room 590
Los Angeles, Califomia 90012
ARGUMENT
CONCLUSION 15
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TABLE OF AUTHORITIES CITED
ti Pa_a
Cases
People v. Alvarez
(1989) 208 CaI.App.3d 567 11
e Peo_p._eg___le
v. Henderson
(2004) 115 Cal.App.4th 922 11
v. Johnson
(1980) 26 Cal.3d 557 13
Peo___.e_o_le
v. Superior Court (Lavi)
(1993) 4 Cal.4th 1164
Rhinehart v.
(1984) 35 Cal.3d 772
Townsend v. i._,_2.9.E_EJ_
(1975) 15 Cal.App.3d 774 1,5,6,7
Statutes
Penal Code
§ 1050 2,10
§ 1050, subd.(e) 11
§ 1382 10,11
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TABLE OF AUTHORITIES CITED
Pa_a
Court Rules
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
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Rehearing is necessary so that this court may address an
unresolved issue presented for review which, in view of this court's
decision, has become of vital importance in trial courts which operate
longer ready for immediate trial in the other cases." (Slip opn., p. 11;
emphasis added and deleted.) Finally, this court states that"[O]nce the
calendar department selects or requires counsel to select one of his or
her competing cases for trial and sends the case to the trial department
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for trial, the attorney can no longer be considered ready to proceed in
the remaining cases set for the same day." (Slip opn., p. 15; emphasis
added.)
Although petitioner obviously disagrees with this court's
conclusion, given the number of cases which do not go to trial in the
scenario posited above (including the George matter in this case),
given the requirement that a master calendar only send cases in which
both sides are ready to open courts for immediate trial, petitioner does
not believe that the rule stated above is unworkable. (Cf. Peo.__0.g_
v.
Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1177.) However, in this
court's introduction to its ruling, this court states, "[W]hen appointed
defense counsel appears for trial in two matters, and the calendar court
selects or requires counsel to select a single matter to be sent to a trial
department for trial, counsel necessarily consents to continuance of the
remaining matter." (Slip opn., p. 2.)
As may be seen, this statement of the rule has left out the
critical condition that the case not only be "selected" to go to trial, but
that the case actually be sent to a trial department. Given that this
court stated the additional requirement at least three times in the body
of its opinion, it appears likely that the truncated statement in the
introduction to the body of the opinion is merely a typographical error,
which may be easily corrected.
Petitioner notes, however, that a rule that counsel consents to
delay when a case to be tried is chosen, even if that case is never sent
to a trial department, would lead to chaos, especially if the prosecution
is to be permitted to delay matters without justification. Under the rule
as stated in the introduction, counsel may appear on two matters. The
court may say that one matter will be tried, but then delay both matters
for a considerable length of time.
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As petitioner has stressed, this is not fancy, it is reality. When
the defense is the _ party required to prepare for trial once a case is
beyond the initial statutory period, it is a simple fact that the prosecutor
does not prepare for trial until after the defense has indicated a ready
status and commenced the 10-day period. Consequently, it is assured
that ev_yp__case outside the initial period will be delayed after the
defense indicates readiness for trial. 1j
cases because a master calendar has stated that one case will be tried,
when, in fact, all the cases are delayed and none is sent to a trial court,
and the People may not be ready for trial in _ of the matters.
Again, it does not appear that this court intended such a
draconian rule, and the problem can be easily corrected by bringing this
court's introductory statement of the rule on page 2 of its opinion into
conformance with this court's discussion and application of the rule as
found on pages 8, 11, and 15 of that opinion. This can be simply done
by the addition of a few words from this court's later discussion:
"[W]hen appointed defense counsel appears for trial in two matters, and.
the calendar court selects or requires counsel to select a single matter
to be sent to a trial department for trial, and sends the case to the trial
_4 _
the trial department for trial, counsel necessarily consents to
continuance of the remaining matter." This court should grant
rehearing and make that correction.
II
DELAY OF TRIAL
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15, 2005, the George matter was sent to a trial court. The court
delayed petitioner's matter to September 16, 2005. However, counsel's
implied consent to delay did not last __..vond September 15, 2005,
because the George matter was settled. It was at that moment that
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Indeed, this court has not placed any limitation upon the delay
which may be ordered once counsel has one case transferred to a trial
court. Can those remaining cases be delayed for any length of time
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operate with either a master calendar or direct calendar system. (Cal.
Rules of Ct., rule 4.115(a).)
When a case is in a direct calendar court, there will be no order
transferring the matter to an available trial court for immediate trial.
Instead, the matter will remain on the calendar of the same court until
People's ready status, and will not result in an immediate trial. Instead,
the "selected" case will be delayed, along with all the other cases, to
some later date, when trial in the "selected" case may, or may not,
commence.
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Unlike a master calendar court, a direct calendar court does not
have an obligation to set cases for trial only when both sides are ready
and the court is available to commence trial immediately. Instead, trials
are most often calendared for future trial dates, with the understanding
(at least, until now) that counsel would remain available to handle other
matters in the meantime. This court's rule, if applied to a direct
expense.
Consequently, while the rule adopted by this court will work
(with some inefficiency) in a master calendar system, it will be simply
disastrous in a direct calendar system. Petitioner suggests that the rule
which will work in a direct calendar system is the rule that she has
proposed: counsel is impliedly consenting to delay in other cases only
when trial in one case has commenced within the meaning of Rhinehart
v. Municipal Court (1984) 35 Cal.3d 772. However, if this court
disagrees, this court must nevertheless set forth a rule which can
operate efficiently in a direct calendar court, without resulting in the
matter, which is then continued for eight days over express objection,
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which this court would acknowledge would put the case on the eighth
day of the 10-day period. The next day, counsel commences a
different trial, which is completed in three days, a not-uncommon
occurrence in a direct calendar court, or even in a master calendar
court. On the "8 of 10" date for the first defendant, the attorney is again
ready and available. If the attorney impliedly consented to delay due
to his temporary engagement in a trial, even though he is available on
both dates that the first defendant's case is on calendar, then it would
appear that the defendant whose case was delayed to the "eighth day"
will lose his speedy trial right because of his counsel's implied consent
to delay on a date when that defendant's case was not even on
calendar. This simply cannot be the rule.
Petitioner thus urges this court to grant rehearing in order to
address these manifest problems with its present discussion.
IV
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This court states that various decisions have held that a court
should not dismiss a case based upon delay within the 10-day period
of section 1382. (Slip opn., pp. 20-21 .) This is undisputed. However,
dismissal is not the only means of preventing unjustified delay. The
open court that the ends of justice require a continuance." (Cal. Rules
of Ct., rule 4.113; emphasis added.) The rules reiterate this
requirement: "A__o..y
request for a continuance, including a request to trail
the trial date, must comply with rule 4.113 and the requirement in
section 1050 to show good cause to continue a hearing in a criminal
proceeding." (Cal. Rules of Ct., rule 4.115(b); emphasis added.) Even
in cases where it has been found that the prosecutor can compel an
unjustified delay (an erroneous holding to petitioner's mind), it has been
recognized that such delays remain improper and that a court may
punish and deter such delays by appropriate sanctions. (_ v.
Henderson (2004) 115 Cal.App.4th 922, 939-940; but see Peo_gP_g_
v.
AIvarez (1989) 208 Cal.App.3d 567,577-578: Penal Code section 1050
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the prosecution is "entitled" to delays within the 10-day period. No such
holding can be found in Bailon, which emphasizes that the prosecution
that is what B__ is saying, the only authority cited for that proposition
is Malengo v. Municipal Court (1961) 56 Cal.2d 813, 815-816. As
petitioner has discussed, Malengo did not hold that Penal Code section
1050 is inapplicable to the prosecutor, or, if it did, it has long since been
superseded by later legislative and judicial action. (See Pet. Ans. to
D.A., pp. 4-11.) _ certainly cannot be followed as the on_
authority permitting unjustified trial delays.
As has been noted above, if the prosecution is permitted to
delay trials for no reason, then the only party which is required to
promptly prepare for trial is the defense. The 10-day period cannot
commence until the defense is ready. Consequently, if the defendant
desires a trial within that 10-day period the defense must diligently
prepare for trial by that date. If the prosecution can secure a delay
merely by demanding it, then the prosecution can, and does, simply
ignore the matter until it has been delayed for eight days or more. As
discussed above, this situation could be disastrous in a direct calendar
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It is true that the question of the prosecution's right to delay
trials without good cause was not one of the issues presented for
review, and the point was not extensively discussed by counsel for real
party. The discussion arose in amicus briefing submitted by the District
Attorney and answered by petitioner. The issue is not directly
presented by the facts of this case, and accordingly this court may find
that the issue should not be discussed at all in this opinion. If so, then
this court should avoid any claims that this court is settling this issue by
noting that it does not intend to do so. If, however, this court does
intend to address the issue, then this court should grant rehearing so
that its opinion may conform with the statutes and Rules of Court which
prohibit _ unjustified delay.
V
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However, counsel did not know, and thus did not advise her client, that
the client had to als__.Q
voice such an objection for it to be effective.
Although it was known that a defendant had to personally object to
delays _ statutory time limits, there was no reason for counsel to
know that a personal objection was needed to delays within statutory
time limits, since that rule was not established until this court's ruling in
thi__._s
case. Indeed, undersigned counsel did not know that rule, either.
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II
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CONCLUSION
Karen Nash,
John Hamilton Scott,
Deputy Public Defenders
• -° • tj
By 4/"'Z___
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CERTIFICATE OF COMPLIANCE
Rules of Court, the enclosed Petition for Rehearing is produced using 13-
words, which is less than the 14,000 words permitted by this rule. Counsel
relies on the word count of the computer program used to prepare this brief.
TJ ASTER
Deputy Public Defender
DECLARATION OF SERVICE
I, the undersigned, declare I am over eighteen years of age, and not a party to the within
cause; my business address is 320 West Temple Street, Suite 590, Los Angeles, California 90012;
that on August 21, 2008, I served the within PETITION FOR REHEARING, VARDUI ROSE
BARSAMYAN, on each of the persons named below by depositing a true copy thereof, enclosed
in a sealed envelope with postage thereon fully prepaid in the United States mail in the City of Los
Angeles, addressed as follows:
PRESIDING JUDGE
LOS ANGELES COUNTY SUPERIOR COURT
111 NORTH HILL STREET
LOS ANGELES, CA 90012
I further declare that I served the above referred-to document by hand delivering a copy
thereof addressed to:
I declare under penalty of perjury that the foregoing is true and correct. Executed on
August 21, 2008, at Los Angeles, California.