Filed 12/14/18 Mercurio v. Superior Court CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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The People charged Cameron David Mercurio in four misdemeanor cases. Over Mercurio’s objection, the trial court continued the trial setting date to the 30th day after Mercurio entered his pleas of not guilty in the cases. Mercurio was ready for trial on the 30th day, but the trial court continued the matter over Mercurio’s objection. Mercurio moved to dismiss all four cases pursuant to Penal Code section 1382, subd. (a)(3)[1] [dismissal for failure to bring misdemeanor case to trial within 30 days after plea] and his right to a speedy trial, and when his requests for relief were denied by the trial court and its appellate division, he petitioned this court for a writ of mandate or prohibition.

We will grant the petition for writ of mandate. The matter was continued past the 30th day without a showing of good cause and Mercurio did not waive his right to a speedy trial, either expressly or implicitly. Dismissal is required under section 1382.

BACKGROUND

In February 2016, the People charged Mercurio in case No. MAN-CR-MI-2018-0002624 with misdemeanor indecent exposure (§ 314), petty theft (§ 484, subd. (a)), trespassing (§ 602, subd. (m)), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). The trial court appointed counsel and suspended proceedings pursuant to section 1368 [doubt as to defendant’s mental competence to stand trial].

Less than two months later, the People charged Mercurio in case No. MAN-CR-MI-2018-0004369 with misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377) and attempted grand theft (§§ 664/487). That same month the People charged Mercurio in case No. MAN-CR-MI-2018-0005026 with misdemeanor petty theft. (§ 484, subd. (a).) The following month, the People charged Mercurio with misdemeanor possession of a controlled substance in case No. MAN-CR-MI-2018-0005598. The trial court appointed counsel for Mercurio and suspended proceedings in all four cases pursuant to section 1368. Mercurio was found competent to stand trial and the cases were reinstated on May 17, 2018.

Mercurio entered not guilty pleas in the cases on May 23, 2018, with no time waiver, and trial was scheduled for June 15, 2018. But three days before trial, the People filed a motion to continue case No. MAN-CR-MI-2018-002624 because a material witness was unavailable. The day before trial, over Mercurio’s objection, the trial court continued the matter on all four cases to June 21, 2018.

Judge Seth Hoyt called Mercurio’s cases on Friday, June 22, 2018, and assigned them to Judge Bob McNatt when the parties announced they were ready. Judge McNatt informed the parties, however, that he had other pending court proceedings and he could not begin trial for a few days. When defense counsel objected on speedy trial grounds, Judge McNatt referred the matter back to Judge Hoyt. Judge Hoyt explained that no jurors were available and, over Mercurio’s objection, reassigned the cases to Judge McNatt for an appearance on June 25, 2018, and denied the People’s request for a further continuance.

The cases were called before Judge McNatt on June 25, 2018, at which time Mercurio moved to dismiss all four cases pursuant to section 1382 and his right to a speedy trial. Judge McNatt said the cases were originally continued to a Friday, and “[e]verybody involved was aware of the practice locally that when cases are set for jury trial assignment on Friday, the jury trials begin on Tuesday with the panels being called.” Judge McNatt denied the motion to dismiss, explaining: “being aware of this practice, making no comment or objection, it seems to me that the defense has silently acquiesced pursuant to the pronouncements in Penal Code [section 1382, subd. (a)(3)(B)] and the case then has ten days with which -- in which it has to be called to trial.” Judge McNatt directed the parties to return the following day (June 26, 2018) for trial.

Before trial started, Mercurio filed a petition for writ of mandate or prohibition in the trial court’s appellate division. The appellate division denied the petition, concluding that defense counsel waived his speedy trial right by failing to point out that the June 22 date of the original continuance fell on a Friday, when, by local practice, jury panels were not called.

Mercurio filed a petition for a writ of mandate or prohibition in this court, and we issued an order to show cause.

DISCUSSION

I

We begin with two procedural matters. Because Mercurio’s cases involved misdemeanors, he first filed a writ petition in the trial court’s appellate division rather than in this court. Although he could not appeal the appellate division’s denial of the writ petition, “[a]n appellate court may, in its discretion, upon petition for extraordinary writ, review the judgment.” (Code Civ. Proc., § 904.3.)

Mercurio named the appellate division as the respondent in this court, but because the trial court’s denial of Mercurio’s motion to dismiss is the matter at issue in this appeal, the superior court is the appropriate respondent. On our own motion, we substitute the superior court as the respondent in this action. Because the People remain the real party in interest, no additional briefing is required.

II

Mercurio contends the trial court violated his right to a speedy trial by continuing the matters past the 30-day deadline, and the trial court abused its discretion in denying his motion to dismiss.

The state and federal Constitutions guarantee a criminal defendant the right to a speedy and public trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right to a speedy trial protects the defendant from having criminal charges pending against him or her for an undue length of time. In order to implement this fundamental right, the Legislature enacted section 1382. (People v. Lewis (2001) 25 Cal.4th 610, 628-629.)

Section 1382 provides in relevant part as follows:

“(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶] . . . [¶]

“(3) Regardless of when the complaint is filed, when a defendant in a misdemeanor or infraction case is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, whichever occurs later . . . .”

Dismissal does not apply if the defendant enters a general waiver of the time limit (§ 1382, subd. (a)(3)(A)), requests or consents to a trial beyond the time limit (id., subd. (a)(3)(B)), or fails to appear or the case is not tried on the set date due to a defendant’s negligence or failure to appear. (Id. subd. (a)(3)(C).)

Here, Friday, June 22, 2018, was 30 days from May 23, 2018, the day Mercurio entered his pleas in all four cases. Citing the practice at the trial court that juror panels are not called on Fridays, the People argue Mercurio implicitly waived his right to a speedy trial, or implicitly consented to a trial beyond June 22, because defense counsel did not inform the trial court that the 30th day would fall on a Friday. We disagree.

“Case law is clear that ‘ “[w]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ [Citations.] The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [Citation.]” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.)

The record shows that Mercurio repeatedly objected to the continuances, he was ready for trial on June 22, and he repeatedly asserted his right to a speedy trial. And while we certainly understand why it may be the practice not to empanel juries on Fridays, we decline to find a waiver of Mercurio’s constitutional right where the practice is not clearly established in the record, is not referenced in the local rules (see Super. Ct. San Joaquin County, Local Rules, rule 1-102), and is disputed.

A trial court cannot adopt procedures that conflict with the law. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351, superseded by statute on another ground in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840.) A practice to not empanel juries on Fridays may make sense in most circumstances, but it cannot supersede a defendant’s constitutional and statutory right to a speedy trial, and it does not constitute good cause to delay a trial beyond the time limit set forth in section 1382.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent San Joaquin County Superior Court to vacate its June 25, 2018 order denying petitioner’s motion to dismiss pursuant to Penal Code section 1382, and to enter a new order granting the motion to dismiss.

/S/

MAURO, Acting P. J.

We concur:

/S/

MURRAY, J.

/S/

RENNER, J.