Supreme Court of California Justia
Citation 44 Cal. 4th 960, 189 P.3d 271, 81 Cal. Rptr. 3d 265, 45 Cal. 4th 76a modification

Barsamyan v. Super. Ct., App. Div.


Filed 10/1/08
IN THE SUPREME COURT OF CALIFORNIA

VARDUI ROSE BARSAMYAN,
Petitioner,
S148712
v.
Ct.App. 2/7 B188695
APPELLATE DIVISION OF
THE SUPERIOR COURT
Los Angeles County
OF LOS ANGELES COUNTY,
Super. Ct. No. BS099858
)
Respondent;
THE PEOPLE,
Real Party in Interest.

MODIFICATION OF OPINION
THE COURT:
The opinion filed August 7, 2008, and published at 44 Cal.4th 960, is modified
in the following respect:
On page 966, the first sentence of the first paragraph is modified to read as
follows: “As we shall explain, we agree with the trial court and the majority in the
Court of Appeal that when appointed defense counsel appears for trial in two matters,
and the calendar court selects or requires counsel to select a single matter for trial and
sends that matter to a trial department for trial, counsel necessarily consents to
continuance of the remaining matter.”
This modification does not affect the judgment.

1


Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Does a defendant's consent to continuance of the trial to a date within the 10-day grace period specified in Penal Code section 1382, subdivision (a)(3)(B), restart the 10-day period within which the case must be brought to trial?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Wed, 10/01/200844 Cal. 4th 960, 189 P.3d 271, 81 Cal. Rptr. 3d 265, 45 Cal. 4th 76a modificationS148712MReview - Criminal Original (non-H.C.)closed; remittitur issued

Parties
1Barsamyan, Vardui Rose (Petitioner)
Represented by John Hamilton Scott
Office of the Public Defender
320 W. Temple Street, Room 590
Los Angeles, CA

2Appellate Division Of The Superior Court, Los Angeles County (Respondent)
111 North Hill Street
Los Angeles, CA 90012

Represented by Marvin M. Lager
Judge, Superior Court-Los Angeles
111 N Hill St #412 Dept 38
Los Angeles, CA

3The People (Real Party in Interest)
Represented by Katharine H. Mackenzie
Office of the City Attorney
200 N. Main Street, 5th Floor
Los Angeles, CA

4Los Angeles County District Attorney (Amicus curiae)
Represented by Lael Ronna Rubin
Attorney at Law
210 W. Temple Street, 18th Floor
Los Angeles, CA

5Los Angeles County District Attorney (Amicus curiae)
Represented by Phyllis Chiemi Asayama
Los Angeles County District Attorney's Office
320 W. Temple Street, Suite 540
Los Angeles, CA

6Los Angeles County District Attorney (Amicus curiae)
Represented by Tracey Whitney Lopez
Office of the District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA


Disposition
Aug 7 2008Opinion: Affirmed

Dockets
Dec 11 2006Petition for review filed
  Vardui Rose Barsamyan, petitioner John Hamilton Scott, Deputy Public Defender
Dec 12 2006Record requested
 
Dec 14 2006Received Court of Appeal record
 
Jan 2 2007Answer to petition for review filed
  RPI The People City Attorney, Rockard Delgadillo
Jan 12 2007Reply to answer to petition filed
  Vardui Rose Barsamyan, petitioner John Hamilton Scott, Deputy Public Defender
Feb 2 2007Time extended to grant or deny review
  to and including March 9, 2007
Feb 21 2007Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Mar 21 2007Opening brief on the merits filed
  Petitioner Vardui Rose Barsamyan Deputy Public Defender John Hamilton Scott
Apr 16 2007Request for extension of time filed
  RPI The People City Attorney , Rockard Delgadillo
Apr 18 2007Extension of time granted
  On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 21, 2007.
May 15 2007Received:
  letter from Office of the City Attorney
May 15 2007Request for extension of time filed
  to file Answer Brief/Merits to 07-02-2007. Deputy City Attorney Katharine H. Mackenzie
May 18 2007Extension of time granted
  On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 2, 2007.
Jun 27 2007Request for extension of time filed
  to Answer Brief/Merits to July 23, 2007 Deputy City Attorney Katharine H. Mackenzie
Jun 29 2007Extension of time granted
  On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including July 23, 2007.
Jul 23 2007Answer brief on the merits filed
  RPI The People Attorney Katharine H. Mackenzie
Aug 10 2007Request for extension of time filed
  to file reply brief/merits Vardui Rose Barsamyan, petitioner
Aug 17 2007Extension of time granted
  On application of petitioner and good cause appeairng, it is ordered that the time to serve and fle the Petitioner's Reply Brief on the Merits is extended to and including September 10, 2007.
Sep 10 2007Reply brief filed (case fully briefed)
  Petitioner Vardui Rose Barsayan
Oct 10 2007Received application to file Amicus Curiae Brief
  Of the Los Angeles County District Attorney in support of The People application and brief under same cover.
Oct 11 2007Received application to file Amicus Curiae Brief
  with the wrong color cover from Riverside County Public Defender by Richard V. Myers, Deputy Public Defender CRC 8.25(b)
Oct 22 2007Permission to file amicus curiae brief granted
  On application of the Los Angeles County District Attorney for permission to file an amicus curiae brief in support of Real Party in Interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 22 2007Amicus curiae brief filed
  Los Angeles County District Attorney in support of real party in interest.
Oct 22 2007Permission to file amicus curiae brief granted
  The application of Riverside County Public Defender for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 22 2007Amicus curiae brief filed
  Riverside County Public Defender in support of petitioner
Nov 13 2007Received:
  from Petitioner Barsamyan response to a.c. brief of District Attorney [exceeds word limit]
Nov 13 2007Application filed to:
  from Petitioner Barsamyan to exceed the word limit re: a.c. response.
Nov 13 2007Response to amicus curiae brief filed
  Petitioner Vardui Rose Brsamyan's Response to Amicus Brief of the Los Angeles County District Attorney by John Hamilton Scott, Deputy Public Defender)
Dec 18 2007Filed letter from:
  Petitioner Vardui Rose Barsamyan Deputy Public Defender John Hamilton Scott subsequent to the filing of petitioner's Answer to the Amicus Brief on behalf of the L.A. County P.D. Letter dated Dec., 17, 2007.
Jan 4 2008Filed letter from:
  RPI The People Attorney Katharine H. Mackenzie, dated 1-4-08 Response to petitioner's letter brief dated: 12-17-07
Apr 9 2008Case ordered on calendar
  to be argued on Tuesday, May 6, 2008, at 9:00 a.m. in San Francisco
Apr 10 2008Filed letter from:
  Letter from deputy city attorney McKenzie, counsel for real party in interest The People, requesting that oral argument be delayed.
Apr 14 2008Argument rescheduled
  to be argued during the court's late May or June sessions
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, May 28, 2008, at 9:00 a.m., in San Francisco
May 28 2008Cause argued and submitted
 
Aug 6 2008Notice of forthcoming opinion posted
 
Aug 7 2008Opinion filed: Judgment affirmed in full
  of the Court of Appeal. Opinion by George, C.J. -- joined by Kennard, Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
Aug 21 2008Rehearing petition filed
  Vardui Rose Barsamyan, petitioner
Aug 27 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 5, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 1 2008Rehearing denied
  The opinion is modified. The petition for rehearing is denied. Kennard, J., was absent and did not participate.
Oct 1 2008Opinion modified - no change in judgment
 
Oct 1 2008Remittitur issued (civil case)
 
Oct 10 2008Received:
  Acknowledgment of receipt for remittitur from Second Appellate District, Div. 7, signed for by Eva McClintock, Deputy Clerk

Briefs
Mar 21 2007Opening brief on the merits filed
 
Jul 23 2007Answer brief on the merits filed
 
Sep 10 2007Reply brief filed (case fully briefed)
 
Oct 22 2007Amicus curiae brief filed
 
Oct 22 2007Amicus curiae brief filed
 
Nov 13 2007Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
Petition for Rehearing - Brief 8_21_08 (Def).pdf (224095 bytes) - Petition For Rehearing (Aug 21, 2008)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 9, 2009
Annotated by admin.ah

Written by: Marina K. Jenkins

BACKGROUND

The defendant, Vardui Rose Barsamyan, was charged with misdemeanor grand theft in the Superior Court of Los Angeles County. Barsamyan was appointed a public defender for representation. In the course of her representation, Barsamyan’s lawyer had a conflicting case ready for trial on the same day, which required Barsamyan’s trial date to be pushed back. Barsamyan claimed that this shift put her new trial outside the grace period of the statutory timeframe for a speedy trial, ultimately denying her to her right to a speedy trial. On this basis, Barsamyan claimed her case should be dismissed.

PROCEDURAL HISTORY

The defendant petitioned for writ of mandate seeking an order to dismiss her case due to a violation of her statutory right to a speedy trial. The Court of Appeal denied the petition, holding that (1) defendant impliedly consented to delay of her trial since counsel was engaged in conflicting trial, and (2) implied consent to delay within statutory period extended statutory 10-day grace period. In February 2007, the Supreme Court granted the petition for review. In August 2008, the Supreme Court affirmed the Court of Appeal’s decision, denying the petition. In October 2008, the court issued a Modification of Opinion, modifying the first sentence of the first paragraph.

ISSUE

Does appointed defense counsel’s consent to or request for continuance in one case to accommodate counsel’s obligations to a client in another case initiate the commencement of a new 10-day grace period within the framework of Penal Code section 1382?

STATUTORY FRAMEWORK

Penal Code 1382 requires dismissal of an action if, absent demonstrated good cause, a defendant is not brought to trial within a specified period following arraignment or plea. As is relevant in this particular case, the statutory period for those charged with misdemeanors and who are not in custody, the statutory period is 45 days.
When the defendant enters a general time waiver or “requests or consents to the setting of a trial date beyond” the 45-day period, the case against the defendant will not be dismissed. However, if a case is set for trial beyond the 45-day period, “by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.”

HOLDING

Three-Prong Holding:

Affirmed:

  1. When an appointed public defender has to appear fro trial in two separate matters, and the calendar court, whether by selection of the court or selection by counsel, determines that one of the matters will be set for trial, then “counsel necessarily consents to continuance of the remaining matter.”
  2. When the public defender consents as such to a continuance in the matter, as described, this consent initiates the running of a new ten-day grace period following the new trial date set, even if the defense counsel otherwise objects to a continuance beyond the initial ten-day period.
  3. If the defendant does not personally object, defense counsel is authorized to waive her client’s right to be brought to trial within the original ten-day grace period, even if the reason for this delay is caused by congestion in the public defender’s court calendar.

COURT’S ANALYSIS

Notable Quotables:

  • “Counsel necessarily consents to postponement when he or she is not unconditionally ready for immediate trial due to conflicting commitments to other clients.” (p. 8)
  • “In order to initiate the 10-day grace period, counsel must announce readiness for trial, an announcement that comprises a claim of readiness for immediate trial.” (p. 8-9)
  • “A deputy public defender can and often must be prepared for trial in a number of cases set for trial on the same date. But once the court selects or counsel agrees on which case will go to trial and the court sends that case to an open trial department, although defense counsel remains unconditionally ready for immediate trial in that case, the defense is no longer ready for immediate trial in the other case [and thus] is not ‘actually and unconditionally free to commence trial proceedings’ in the remaining cases.” (p. 11)
  • “Nothing in the language of section 1382(a)(3)(B) requires the court to disrupt the calling of the calendar or to keep defense witnesses and the prosecution and its witnesses waiting all day [or longer] in one case while negotiations occur in the trial department or another case. . . . The court should not be required to hold its calendar in abeyance until one of counsel’s cases either commences trial or is otherwise resolved.” (p. 12)
  • “[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 for trial, the attorney no longer can be considered ready to proceed in the remaining cases set for the same day.” (p. 15)
  • “For the purpose of section 1382(a)(3)(B), a defense attorney’s request to ‘trail’ for a day within the 10-day grace period because of a calendar conflict is an indication that counsel is not prepared to bring the case to immediate trial, and is indistinguishable from a request for continuance.” (p. 16)
  • “It is reasonable to find consent to a new trial date when the delay within the 10-day grace period is attributable to the defense. (p. 21)
  • “[T]he 10-day grace period, although still brief enough to protect adequately a defendant’s right to speedy trial, was intended to afford the prosecution a grace period in which to secure its witnesses and a courtroom for trial.” (p. 22)
  • “Under these circumstances, . . . it is reasonable and consistent with the legislative intent to recognize that the burden of remaining prepared and available rests upon the defendant.” (p. 22)
  • “[T]he defendant must object personally to a proposed continuance in order to preserve the claim that counsel improperly waived his or her client’s speedy trial rights.” (p. 25)

AUTHORITY

Primary Precedent:

  • Bryant v. Superior Court (1986) 186 Cal. App. 3d 483
    “In criminal prosecutions, an announcement of readiness has become through custom and practice, a term constituting an express representation of ability and willingness to submit to immediate trial. . . . As of the moment a defendant announces ‘ready’ on the last continuance date . . . he is submitting himself to being brought to trial for the fact that the 10-day grace period automatically comes into operation. 498-99.
  • People v. Superior Court (Alexander) (1995) 31 Cal. App. 4th 1119
    In Alexander, the lower court had unilaterally decided which case to send to trial, which was found to be unacceptable because this decision was made in the absence of the defendant and defense counsel. There could have been no consent if the defense was not even present.
    The Alexander court also identified two events as pertinent to the issue as to whether there had been consent from the defense for a continuance: the assignment of a conflicting case for trial and the commencement of trial in the conflicting case. In dicta, the Alexander court suggested, based on Townsend, that it was unnecessary that the trial have commenced.
  • Townsend v. Superior Court (1975) 15 Cal. 3d 774
    In Townsend, the court decided that “barring ineffective assistance of counsel, the defense necessarily consents to postponement when defense counsel, because of legitimate obligations to another client, is not ‘actually and unconditionally free to commence trial proceedings’ in the defendant’s case.

BIBLIOGRAPHY

Suggested Secondary Sources:

  • 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 310.
  • 57 A.L.R.2d 302, Wavier or Loss of Accused’s Right to Speedy Trial.
  • Cal. Jur. 3d, Criminal Law: Rights of the Accused §159.
  • Charles H. Fairall, Criminal Law and Procedure of California Including the Penal Code of California, KFC 1100 F35 c.2, vol. 2.