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Court of Appeal:
Man Four Minutes Late to Court Lost Speedy-Trial Right
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has denied a writ of prohibition/mandate sought by a man charged with misdemeanor drunk driving offenses who maintains that a dismissal is required because he was denied his speedy-trial right under Penal Code §1382, contesting the reasonableness of a judge’s ruling that the 45-day period started anew because he was four minutes late in showing up for trial.
Justice Thomas A. Delaney authored Friday’s unpublished opinion denying the writ petition, but counseled Orange Superior Court Judge Beatriz M. Gordon to try, in the future, to strike a better balance “between orderly court administration and a defendant’s interest in minimizing trial delays.”
Contesting the denial of his motion to dismiss is Stephen Christopher Bush. He relies on Penal Code §1382(a)(3) which requires a dismissal, absent good cause to deny it, “when a defendant in a misdemeanor or infraction case” who is not in custody “ is not brought to trial…within 45 days after the defendant’s arraignment or entry of the plea, whichever occurs later.”
Bush who last May 20 was ordered by Gordon, presiding over the misdemeanor master calendar court, to be present for trial on June 5, which was the last day of the 45-day period. He was admonished “to be present at 8:30 a.m. or a warrant will be issued.”
Penal Code §1043(e)(3) provides that where a person accused of a misdemeanor does not show up for trial and has not authorized counsel to proceed in his or her absence, the judge may “[i]ssue a bench warrant.”
Judge’s Action
On June 5, Gordon took the bench at 8:32 a.m.; Bush wasn’t there; the judge issued a warrant for his arrest; he showed up two minutes later; she withdrew the warrant, but announced:
“Today is day 0 of 45. Last day/day 45 is 7/22/24.”
She declined to send the case out for trial that day, setting June 13 as the new trial date.
Bush sought a writ in the Superior Court’s Appellate Division. After it was summarily denied, he petitioned the Court of Appeal, arguing that Gordon acted pursuant to a practice of hers which constitutes “nothing short of a concerted effort to subvert the speedy trial rights of defendants in violation of the federal and state constitution and statute.”
Delaney’s Opinion
Disagreeing, Delaney wrote:
“We conclude respondent court had discretion under section 1043 to issue the bench warrant for Bush’s failure to timely appear at trial and thus did not err by denying Bush’s section 1382 motion to dismiss. While a trial court practice of automatically issuing warrants without consideration of the relevant circumstances of the case may qualify as a failure to exercise discretion under section 1043, nothing in this record suggests the trial court failed to consider the facts before it or abused its discretion in doing so. Accordingly, we must deny the petition for writ of prohibition or mandate.”
He pointed out that §1382(a)(3)(C) provides an exception to the dismissal requirement where “the defendant fails to appear” for trial “and a bench warrant is issued.” It adds that where “the case is not tried on the date set for trial because of the defendant’s neglect or failure to appear…the defendant shall be deemed to have been arraigned within the meaning of this subdivision on the date of his or her subsequent arraignment on a bench warrant or his or her submission to the court.”
Delaney declared:
“The court’s 45-day calculation comports with the plain language of section 1382.”
Further Observations
He went on to say:
“While Bush alludes to ‘lay people who may have difficulties with childcare or transportation,’ nothing in the record discloses any attempt by Bush to provide an explanation to the court for his tardiness….[O]n this record, we do not find respondent court’s management of its calendar to be a subversion of Bush’s speedy trial rights.”
The jurist added that while finding “no abuse of discretion here, we remind respondent court of its duty to exercise that discretion” with a regard for balancing interests in forming its “case management practices,” advising:
“These practices may include—if the circumstances allow for it—making an effort to ascertain the defendant’s whereabouts from their counsel, placing the matter on second call to give the defendant a few minutes more to appear, setting a later time for the defendant to appear (to reduce the defendant’s wait time until counsel arrive), or ordering both sides to appear at the same time for a hearing or trial. In addition to promoting substantial justice and trust in the system, practices like these may lead to more efficient and effective management of cases. We do not mean to suggest the court must do any of these things. We merely note these options are worthy of consideration in the prudent exercise of judicial discretion.”
Delaney said in a footnote:
“In a footnote in the petition, Bush remarks that respondent court hadn’t ‘bothered to inquire whether [his] counsel had [section] 977 authority to proceed.’ When the court issued the bench warrant for Bush’s nonappearance, his counsel wasn’t present in court either. If defense counsel had been there, she could have represented she had authority under section 977 to proceed in his absence. We agree the better practice would have been for the court, time permitting, to make this inquiry. But to the extent Bush suggests the court was required to do so before issuing the bench warrant, Bush provides no legal authority for his position.”
The case is Bush v. Superior Court (People), G064402.
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