Hunter v. Super. Ct.

Filed 9/26/07 Hunter v. Super. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

BY THE COURT:^[1]

Petitioner Darrell Hunter is incarcerated in the Marin County Jail awaiting retrial on a charge of murdering Ronnie Small in 1997. His earlier conviction was affirmed on appeal in July 2003 (A091583). The conviction was vacated in August 2005, however, after the Marin County Superior Court granted his petition for writ of habeas corpus based on juror misconduct.

In September 2005, petitioner was brought from state prison to the Marin County Jail for retrial. Since his arrival, petitioner has been housed in the disciplinary administrative segregation unit even though he has not broken any rules. Prisoners in this unit are locked down for 23 hours of every day and are released from their cells for exercise, showering, and phone calls for only one hour in each 24-hour period on a rotating 24-hour basis. Petitioner sought relief from these conditions in a petition for writ of mandate, which we denied in July 2006 (A113977).

Petitioner was tried alone in his first trial. He is to be retried with Joseph Michel who had fled after the 1997 murder, was found in Europe and extradited in August 2005. Trial was originally set for February 16, 2007. On November 2, 2006, Michels court-appointed attorney was allowed to withdraw. Attorney Garry Preneta was appointed as new counsel for Michel on November 6, 2006. Upon inquiry from the court as to his readiness to proceed with the February 16, 2007 trial date, Preneta indicated that he would need additional time to prepare. On December 7, 2006, over petitioners objection, the court granted an eight-month continuance of trial to October 18, 2007. In so doing, the court carefully weighed petitioners right to a speedy trial against the states interest in joint trials as expressed by Penal Code sections 1098 and 1050.1 and codefendant Michels right to effective assistance of counsel. The court ended by stating: So I dont anticipate . . . granting any further motions to continue trial.

On December 18, 2006, petitioner withdrew his general time waiver under Penal Code section 1382 and shortly thereafter filed a petition for writ of mandate seeking review of the trial courts eight-month continuance of trial over his objection. After obtaining informal opposition, we denied the petition in an order stating that it was without prejudice to seeking renewed relief in this court should any further continuances be granted (A116254).

On August 6, 2007, codefendant Michel filed another motion for continuance of trial to allow more time for his counsel to prepare for trial. On August 7, 2007, petitioner filed opposition to the motion for continuance to the extent that it would necessitate continuance of petitioners trial. Petitioner also moved for severance of his trial. After hearing on the motion on August 15, 2007, the court denied the motion for continuance because a continuance would violate petitioners speedy trial rights.

On August 24, 2007, Michel filed a renewed motion for continuance of trial. At the hearing on August 28 and 30, 2007, the court reversed its earlier ruling and continued the joint trial of petitioner and Michel until March 3, 2008, more than 14 months after petitioner had withdrawn his general waiver of the 60-day trial requirement of Penal Code section 1382, subdivision (a)(2), and had asserted his right to be brought to trial within 60 days of that withdrawal. Despite its earlier stated intent to grant no further continuances, the court concluded that the statutory preference for joint trials set forth in Penal Code section 1098 and 1050.1 outweighed petitioners speedy trial rights and constituted good cause to continue the trial. The court referred to the description in Barker v. Wingo (1972) 407 U.S. 514 of the relative nature of the speedy trial right and the factors to be considered: The length of the delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant. The court noted that the seriousness of the charges affects the length of delay considered reasonable and that petitioner has already been tried once and found guilty. The court considered the hardship on petitioner as a result of the conditions of his incarceration but concluded that any inconvenience to him is outweighed by the cost to the judicial system of having to conduct two separate trials.

Petitioner contends that the court violated his constitutional and statutory speedy trial rights when, to maintain joinder with his codefendant, it continued his trial 378 days beyond the 60-day statutory period. We agree. None of this delay has been attributable to petitioner. In such circumstances, six months is the longest continuance heretofore permitted in a published California decision where the continuance was granted solely to allow preparation time for a codefendant. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487.) The delay here is over twice that. We agree with petitioner that the trial court overvalued convenience or expediency as a factor and undervalued the length of the delay and the prejudice to petitioner. The fact that petitioner had formerly been convicted should not weigh in the equation. He is by law presumed as innocent as any other pretrial detainee. (See Pen. Code,  1180; In reBegerow (1901) 133 Cal. 349, 356.) Even if petitioners defense has not been prejudiced by the delay, petitioner is nevertheless suffering prejudice as a result of the lengthy extension of time that he will be subjected to the onerous conditions of his jail incarceration. (See Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541-1542.)

We expressed our concern about the length of the continuance when we denied petitioners earlier writ, and indicated we would entertain a new petition should any further continuances be granted. Both times the trial court has granted a continuance it has expressed concern about petitioners speedy trial rights but has found them outweighed by other considerations. At this point, petitioners speedy trial rights cannot continue to be subordinated to the convenience to the judicial system of a joint trial.

We have reached our decision after notice to all parties that we might act by issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The entitlement to relief is obvious, and there is a compelling urgency to effectuate petitioners speedy trial rights. (See Alexander v.Superior Court (1993) 5 Cal.4th 1218.) Accordingly, let a peremptory writ of mandate issue commanding respondent court to vacate its order continuing petitioners trial and to make a new and different order reinstating the earlier order setting petitioners trial for October 18, 2007. Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)

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^[1] Before Kline, P.J., Lambden, J., and Richman, J.