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 8/7/08

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.

The present case requires us to construe the statutory speedy trial
provisions contained in Penal Code section 1382, subdivision (a) (section
1382(a)).1 The statute 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. For persons such as petitioner who are charged with
misdemeanors and are not in custody, the statutory period is 45 days. The action
will not be dismissed for delay beyond the specified period, however, if the
defendant enters a general time waiver or “requests or consents to the setting of a

1
Statutory references are to the Penal Code unless otherwise indicated.
1


trial date beyond the [statutorily prescribed] period.” (§ 1382 (a)(2)(B) [felony];
§ 1382(a)(3)(B) [misdemeanor or infraction].) But “[w]henever a case is set for
trial beyond the [initial statutorily prescribed] 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.”
(§ 1382(a)(2)(B) & (3)(B), italics added.)
It is the 10-day grace period that is at issue in the present case.
Specifically, we consider whether appointed defense counsel’s consent to or
request for continuance in one case to accommodate counsel’s obligations to a
client in another case initiates the commencement of a new 10-day grace period.
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
to be sent to a trial department for trial, counsel necessarily consents to
continuance of the remaining matter. We also agree with the trial court and the
majority in the Court of Appeal that when defense counsel consents to continuance
in the manner described above, such consent initiates the running of a new 10-day
period following the date to which the trial is continued, even if defense counsel
objects to a continuance to a date beyond the original 10-day period.
Finally, we conclude that counsel has authority to waive the client’s right to
be brought to trial within the original 10-day grace period in the absence of a
personal objection from the client, even when appointed counsel’s calendar
congestion is the cause of the delay.
I
A complaint was filed on June 1, 2005, in the Los Angeles County Superior
Court, charging petitioner with misdemeanor grand theft in violation of section
487, subdivision (a). Petitioner was arraigned on the complaint and pleaded not
2
guilty on June 3, 2005. The public defender was appointed to represent her, and
she remained out of custody. Trial was set for July 14, 2005. On July 6, 2005,
petitioner agreed to the continuance of trial beyond July 18, 2005, the 45th day
following arraignment, stipulating to the “People’s reasonable continuance.” The
next hearing was set for August 3, 2005, when petitioner again stipulated to the
“People’s reasonable continuance” to September 7, 2005.
When the case was called on the latter date, defense counsel stated that the
“[d]efense is ready for trial but is still requesting discovery before the trial date.”
The prosecutor noted that all discovery had been provided to counsel. The court
ordered petitioner to return for trial on September 15, 2005, adding that this date
was the eighth day of the 10-day grace period that commenced on September 7,
2005.
On September 15, 2005, defense counsel, Ms. Nash, appeared in the
calendar court representing petitioner and another client, Gena George. When the
George matter was called, the prosecutor estimated the trial in that case would last
four days. The court discussed with defense counsel and the prosecutor whether
there was a potential for a negotiated disposition in that case. The prosecutor,
leaving open the possibility that the People might make an offer, depending upon
the contents of a videotape that the trial deputy still had not viewed, stated: “I was
prepared to offer, when [the trial deputy] gets back, if the court could give us a
little time, it could be a 602 [misdemeanor trespass]. [¶] . . . [¶] It depends on
the video.” The court responded: “I will just send it out just in case.” Turning to
defense counsel, the court inquired: “Then you want to continue the other case?”
and counsel responded, “I was going to try to get it sent out at the same time.”
The court called petitioner’s case. The People announced their readiness
for trial, estimating a trial of four days’ duration. Defense counsel stated: “Your
Honor, on this case I have been trying to work out a dispo. I want to get sent out
3
on both cases because I understand it is the practice to send us out to a dispo court
first.” The court responded: “Not necessarily; it depends on how many open
courts we have.” Defense counsel then stated, “Miss George will go to trial.” At
sidebar, the court and counsel discussed the possibility of a negotiated disposition
in petitioner’s case. The court then stated it would send both the George matter
and petitioner’s case out to a trial department for trial.
Thereafter, however, the court announced: “On the two jury trial matters,
the Gina George and the Vardui Barsamyan, Department E requested that you
designate which one you want to go out on, and I think that was the George
matter, and so we will need to continue the Barsamyan matter.” Defense counsel
responded: “Okay.” The court concluded: “The George matter is assigned to
Department F, Judge Dabney for trial forthwith.”
After a recess, defense counsel attempted to limit her consent to a
continuance with the following statement: “Your Honor, on Barsamyan I would
ask to trail that to tomorrow. I still haven’t heard from the deputy who watched
the video [in the George matter, presumably] so that trial might go away.” The
court responded: “I have been instructed by Department E that if you can’t
announce ready on both — well, you can’t try both, that we need to continue the
second one.” Defense counsel stated: “I understand that. I am asking to continue
it until tomorrow.” The court inquired: “As a new zero of ten?” and defense
counsel replied, “No, within the period.”
The court responded: “I can’t do that, so we will need to pick a new zero of
ten date on Barsamyan.” Defense counsel argued in response: “Your Honor, for
the record, I don’t think that legally the court can force me to waive time. I am
asking to just trail within the period, and we are not waiving time because in my
experience, and this is just not the legal reasoning but so the court knows my
reasoning . . . is that cases sent out for trial don’t go; this other case might resolve
4
today so I am asking to come back on 9 of 10 or 10 of 10.” The court replied:
“That request to trail is denied, as defense cannot be ready on two different trials
at once, unless you wanted to find another trial deputy who is able to step in today
to handle Miss Barsamyan’s case.”
Defense counsel pursued the matter: “Your Honor, for the record, when
[the] People aren’t ready to go to trial they ask to trail, so I am just asking to trail;
that is the same thing that happens all the time when the prosecutors ask to trail
when they are not ready.” The court denied the request and asked what date
defense counsel wanted for the continued trial date. Counsel responded: “Your
Honor, I am just asking for a date within the period.” The court responded: “I
know, but if you are not going to get a date within what you consider to be the
period, what date do you want? Tomorrow?” Counsel answered: “I am stuck in a
rough spot because I can’t, I am not waiving time.” The court stated: “I am going
to order [petitioner] to return tomorrow as zero of ten.” The People agreed to the
following day as zero of 10.
Counsel for petitioner announced readiness for trial on September 16, 2005.
Defense counsel added that she had not been actually engaged in trial in the
George matter on the previous day, because the George matter had been resolved
through a negotiated disposition. The court explained that when defense counsel
was sent out for trial in the George case, she no longer was ready for trial in
petitioner’s case and that the September 16, 2005, hearing represented day zero of
10. The court continued the matter to September 22, 2005, over defense counsel’s
objection. The matter was advanced to September 21, 2005, and counsel for
petitioner moved to dismiss for delay in prosecution. After the trial court denied
the motion, petitioner sought a writ of mandate and/or prohibition in the appellate
department of the superior court. Petitioner contended that defense counsel are
authorized to “be ready in more than on[e] case on the same day, and . . .
5
petitioner’s counsel never became engaged in any conflicting trial. Consequently,
petitioner did not consent to any delay in [her] trial. Moreover, even had there
been such consent, it was to a date within statutory time limits, which thus
remained in effect. The delay beyond September 19, 2005, exceeded the time
limits [of section 1382(a)] and was without good cause. Consequently,
petitioner’s motion to dismiss should have been granted.” The petition was
summarily denied, and petitioner filed a petition for writ of mandate in the Court
of Appeal. By a divided decision, the Court of Appeal denied the petition, and we
granted the petition for review filed by petitioner.
II
Section 1382(a) provides in pertinent part: “The court, unless good cause to
the contrary is shown, shall order the action to be dismissed in the following cases:
[¶] . . . [¶] (3) . . . [W]hen a defendant in a misdemeanor . . . case is not brought
to trial . . . within 45 days after the defendant’s arraignment or entry of the plea
. . . . However, an action shall not be dismissed under this subdivision if any of
the following circumstances exist: [¶] (A) The defendant enters a general waiver
. . . . [¶] (B) The defendant requests or consents to the setting of a trial date
beyond the . . . 45-day period. In the absence of an express general time waiver
from the defendant, the court shall set a trial date. Whenever 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.”
We examine the text of this statute with the purpose of understanding and
giving effect to legislative intent. (See People v. Standish (2006) 38 Cal.4th 858,
869; People v. Statum (2002) 28 Cal.4th 682, 689.)
6
A
As can be seen from the face of the statute, a defendant’s consent to or
request for postponement of trial is critical to identifying the governing 10-day
grace period.
Defense counsel, as part of his or her control of the procedural aspects of a
trial, ordinarily has authority to waive the statutory speedy trial rights of his or her
client, even over the client’s objection, as long as counsel is acting competently in
the client’s best interest. (People v. Harrison (2005) 35 Cal.4th 208, 225;
Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 784 (Townsend).) This is
because statutory speedy trial rights are not among those rights that are considered
so fundamental that they are “beyond counsel’s primary control.” (Townsend,
supra, 15 Cal.3d at p. 781; cf. New York v. Hill (2000) 528 U.S. 110, 114-115
[recognizing the authority of defense counsel to waive specified federal statutory
speedy trial rights].) On the other hand, our concern for the client’s right to the
assistance of unconflicted counsel has led us to conclude that appointed defense
counsel lacks authority to waive his or her client’s statutory speedy trial rights
when the client personally objects to a continuance and the sole reason for the
continuance is defense counsel’s obligation to another client. (People v. Wright
(1990) 52 Cal.3d 367, 389; People v. Johnson (1980) 26 Cal.3d 557, 566-569
(Johnson); see also Eshaghian v. Municipal Court (1985) 168 Cal.App.3d 1070,
1080.)
A waiver of statutory speedy trial rights occurs when defense counsel
consents to or requests a delay in the proceedings. Consent may be express or
implied (§ 1382(a)(2)(B) & (3)(B)), and is inferred from silence. “[F]ailure of
defendant or his counsel to make timely objection to a postponement constitutes
implied consent to the postponement.” (Johnson, supra, 26 Cal.3d at p. 567, fn. 7;
see People v. Wilson (1963) 60 Cal.2d 139, 146; see also Judicial Council of Cal.,
7
Seventeenth Biennial Report (1959) p. 31; Note, Selected 1959 Code Legislation
(1959) 34 State Bar J. 583, 717-718 [§ 1382, as amended in 1959, was intended to
codify the rule that “a postponement is attributable to defendant not only when he
requests a continuance, but also when he . . . consents, either expressly or
impliedly, to a continuance requested by the prosecution. Implied consent is the
failure to object”].)
Petitioner contends that her counsel did not consent to delay within the
meaning of section 1382(a)(3)(B), because counsel asked that both the George and
the Barsamyan matters be sent to the trial department, refused to waive time, and
repeatedly objected to delay beyond the original 10-day period. As is evident,
counsel did request a postponement of one or two days, and in any event the
question remains whether counsel’s inability to bring petitioner Barsamyan’s case
to trial on September 15, 2005, constituted implied consent to postponement
within the meaning of section 1382(a)(3)(B).
A defense attorney’s implied consent to postponement arises in certain
circumstances when counsel has conflicting obligations to more than one client.
(Townsend, supra, 15 Cal.3d at p. 783; People v. Superior Court (Alexander)
(1995) 31 Cal.App.4th 1119, 1131 (Alexander).)
As we shall explain, counsel necessarily consents to postponement when he
or she is not unconditionally ready for immediate trial due to conflicting
commitments to other clients. In the present case, when the trial court required
counsel to designate a single case to be sent to the trial department for trial, and
thereafter assigned the George matter to the trial department, counsel was unable
to bring petitioner’s case to immediate trial.
At the outset, we note the importance of counsel’s preparedness for
immediate trial in the context of section 1382(a)(3)(B). In order to initiate the 10-
day grace period, counsel must announce readiness for trial, an announcement that
8
comprises a claim of readiness for immediate trial. “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
immediately. At that moment, defendant would have a right to immediate trial but
for the fact that the 10-day grace period automatically comes into operation.”
(Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 498-499 (Bryant).) In the
context of section 1382(a)(3)(B)’s 10-day rule, in initiating the 10-day grace
period a defendant is representing that he or she is ready to go to trial immediately,
with the understanding that the prosecution has a 10-day grace period in which to
actually bring the case to trial. (186 Cal.App.3rd at pp. 498-499; see also Medina
v. Superior Court (2000) 79 Cal.App.4th 1280, 1289.)
Readiness for trial remains pertinent to the question of consent to
postponement within the meaning of section 1382(a)(3)(B). We find guidance in
Townsend, supra, 15 Cal.3d 774. In that case, in concluding that the trial had
commenced within the 10-day grace period contemplated by section 1382, we
referred to the following sequence of events. The court set the first trial date
beyond the initial 60-day period established by section 1382 for persons charged
with felonies. Additional continuances occurred at the request of the defendant’s
appointed counsel, but over the defendant’s continuing personal objection. The
case was set for trial on November 7, 1974, but the defendant’s attorney was
engaged in another trial on that date and a substitute deputy public defender
agreed to continue the case from day to day until defense counsel became
available. Daily continuances ensued until defense counsel announced “readiness”
for trial on November 12, 1974, in the defendant’s case, but also informed the
court that “he was ‘trailing’ in another case,” the Bond matter, which defense
9
counsel believed to be the “more pressing” of the two cases. (15 Cal.3d at p. 778.)
Defense counsel requested that the defendant’s case “be trailed from day to day,”
pending his completion of the Bond trial. On November 13, defense counsel made
the same representation and request, and on Friday, November 15, he appeared
and announced to the court that the Bond matter would be tried that afternoon and
that he would be available immediately thereafter to bring Townsend’s case to
trial. The court reset the case for Monday, November 18, when the defense and
the prosecution appeared and announced readiness for trial. Over defense
objection that November 18 was the last of the 10 days in which the defendant
could be brought to trial, the case was continued to November 25 due to the
unavailability of a trial court.
We considered the defendant’s contention that the 10-day grace period
began to run on November 12, 1974, when defense counsel announced readiness
for trial but requested that the matter be trailed from day to day because of his
obligations to another client. The defendant asserted that although the 10-day
period may have been tolled for one day between November 12 and 18 while his
attorney was occupied by the Bond trial, the 10-day period expired prior to
November 25. We commented that neither the statute nor case law supported the
“tolling” theory. (Townsend, supra, 15 Cal.3d at p. 782.) Our decision concluded
that, in any event, the 10-day period did not commence prior to November 18,
because counsel did not object to delay on November 12, but rather requested that
the trial “trail from day to day until he had finished ‘the Bond matter.’ ” (Ibid.)
The same situation occurred on November 15 when defense counsel informed the
court that the Bond trial would conclude that afternoon, and agreed to a trial date
of November 18. (Id. at pp. 782-783.)
Because the defense attorney had announced readiness for trial on
November 12 but at the same time informed the court that he was “trailing” in
10
another case that he deemed more pressing, we concluded that, under these
circumstances, although “counsel responded that he was ‘ready’ for trial, in truth
and in fact he was not ‘ready’ to proceed because of legitimate commitments in
another case and it was not until November 18 that he was actually and
unconditionally free to commence trial proceedings” on behalf of defendant
Townsend. (Townsend, supra, 15 Cal.3d at p. 783, italics added.) We held that
“by counsel’s failure to object, and in some instances by his affirmative requests
for delay, [the defense] has effectively consented to every postponement up to and
including November 18.” (Ibid.)
In sum, in Townsend we concluded 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.
(Townsend, supra, 15 Cal.3d at p. 783.)
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 cases. At this point the attorney is not “actually and unconditionally free
to commence trial proceedings” in the remaining cases. Because of her conflicting
obligations to another client, defense counsel in the present case was not “actually
and unconditionally free” to try petitioner’s case on September 15, 2005, once the
court determined that the George matter would be sent to a trial department.
When the court sent the George matter to trial, defense counsel necessarily
consented to further continuance of petitioner’s case.
11
Petitioner contends it is not appropriate to infer consent to continuance in
one case until defense counsel actually begins a trial in another case. Petitioner
contends that, because the George matter did not go to trial on September 15, 2005
(as counsel informed the court the following day), petitioner’s attorney never
engaged in a conflicting trial and the defense could not be charged with consent to
or request for delay in the present case. She claims that the 10-day grace period
contemplated by section 1382(a)(3)(B) began on September 7, 2005, when counsel
announced she was ready for trial, and concluded on September 19, 2005, the
Monday following the 10th day.2
We are not persuaded. 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 potentially
for more than a day — in one case while negotiations occur in the trial department
on another case. The requirement advocated by petitioner would be impractical
and would place an undue burden on the calendar department of the superior court.
As real party in interest points out, counsel’s conflicting obligation may be to a
client whose case may be heard in a distant courthouse or even in another county’s
superior court. 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.

2
Real party in interest claims that contrary to the assumption of the trial
court, the 10-day period did not commence on September 7, 2005, because
defense counsel’s statement of readiness was not unequivocal on that date.
Defense counsel’s announcement of readiness was accompanied by a statement
that all discovery had not yet been received. The Court of Appeal majority
expressed some sympathy for real party’s claim but did not decide the case upon
that ground. Instead, the court reached other issues and ultimately simply assumed
that a 10-day grace period commenced on September 7. Because the Court of
Appeal did not resolve this claim, we also decline to reach the issue.
12


We find support in Alexander, supra, 31 Cal.App.4th 1119 for the
conclusion we reach. In that case the calendar court unilaterally decided which
case to send to trial when a defense attorney had multiple cases that were set for
trial on the same date, and thereafter continued the attorney’s other cases. The
reviewing court disapproved of this practice, because the court made that decision
in the absence of the defendant and defense counsel. In those circumstances, the
defense could not be charged with having consented to the postponement. (Id. at
pp. 1131, 1133.)
Acknowledging the heavy caseload faced by courts as well as by counsel
(Alexander, supra, 31 Cal.App.4th at pp. 1128-1129, fn. 8), the Alexander
decision recommended that trial courts adopt the following procedure, pursuant to
which consent to postponement of conflicting cases properly could be implied:
“Defense counsel should [in person] inform ‘the court of every case in which he is
presently prepared for trial, even if trial dates may conflict, so that the court can
determine the order in which the cases should be tried.’ [Citation.] If the court
then assigns case ‘A’ for trial, trails the other ‘last-day’ cases without objection
from those defendants, and commences trial in case ‘A,’ the consent of the
defendants in the remaining cases to continue their matters is implied. [Citation.]
In the trailing cases, once defense counsel announces ‘ready,’ the 10-day grace
period is triggered, giving the People 10 days to bring the matter to trial.”
(Alexander, supra, 31 Cal.App.4th at pp. 1130-1131, fn. omitted.)
The appellate court in Alexander identified two events — the assignment of
a conflicting case for trial and the commencement of trial in the conflicting
case — as pertinent to the issue of whether the defendant had consented to a
continuance. The court explained that it had no occasion to render a decision
concerning which of the two events marked the point at which the defendant’s
consent was implied, but it suggested in dicta that it was unnecessary that trial
13
have commenced. The court noted that in Townsend, we observed that the defense
attorney was not ready because of “ ‘legitimate commitments in another case,’ ”
even though an actual trial had not commenced. (Alexander, supra, 31
Cal.App.4th at p. 1131, fn. 10.)
Petitioner contends that, even if the court need not wait until a conflicting
trial actually commences, an attorney cannot be said to have a conflicting
obligation rendering him or her not “ready” for trial unless, when the conflicting
case is sent to the trial department, it is inevitable that the case will proceed to
trial. Petitioner fails to supply any authority in support of this “inevitability”
standard; she merely asserts that trial in the George matter was not inevitable on
September 15. We do not perceive how a calendar court can determine accurately
which cases “inevitably” will proceed to trial, and we do not believe that such a
standard could prove workable in congested criminal calendar departments.
Petitioner warns that appointed counsel must be permitted to answer ready
in more than one case, citing practical considerations and also relying upon a
footnote in our decision in Johnson, supra, 26 Cal.3d 557, which commented: “In
analyzing the record in Townsend we stated at one point that ‘[w]hile the record
discloses that on November 12 defense counsel responded that he was “ready” for
trial, in truth and in fact he was not “ready” to proceed because of legitimate
commitments in another case . . . .’ [Citation.] We agree with the suggestion of
the Los Angeles County Public Defender that this language should not be
construed to prevent defense counsel from informing the court of every case in
which he is presently prepared for trial, even if trial dates may conflict, so that the
court can determine the order in which the cases should be tried.” (Id. at p. 568,
fn. 9.)
We do not suggest today, however, that an attorney may not announce
readiness for trial in more than one case prior to the assignment of any particular
14
case to a trial department. Such a rule would place an intolerable burden upon the
defense, essentially ensuring that the multiple cases set for trial every day by a
busy public defender’s office would be subject to continuance attributable to the
defense every time they were called, even when a defense attorney and a
courtroom were available for trial of one of those cases. We conclude, however,
that once 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. The language petitioner quotes from Johnson, supra, 26 Cal.3d
557, does not suggest otherwise.
B
Petitioner claims that, assuming some form of consent to postponement on
the part of her counsel, the consent extended only to a date within the original 10-
day period. She claims that counsel’s restricted consent did not initiate the
running of a new 10-day period. We are not persuaded.
As stated above, the pertinent statutory language provides that when the
defendant has “request[ed] or consent[ed] to the setting of a trial date” beyond the
initial statutorily prescribed period, “the court shall set a trial date.” It further
provides that “[w]henever a case is set for trial beyond the [initial statutory] 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.” (§ 1382(a)(3)(B).)
On its face, the statutory language indicates that whenever a defendant
consents to or requests any new trial date beyond the initial statutory period, the
defendant must be brought to trial on that trial date or within 10 days thereafter —
that is, 10 days subsequent to the last date to which the defendant consented.
“ ‘The statute provides that an action need not be dismissed if it is set for trial
15
beyond the 60-day period with the consent of the defendant and if defendant is
brought to trial within 10 days thereafter. The word “thereafter” refers back to the
date the case was set with the defendant’s consent.’ ” (Townsend, supra, 15 Cal.3d
at p. 783, quoting Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 132-133;
see also Bryant, supra, 186 Cal.App.3d at pp. 489-490.)
Reviewing courts routinely examine the record for the last date to which
the defendant consented for the purpose of initiating the 10-day period — even, in
some instances, when the defendant already had announced readiness for trial at
some earlier point. (See Townsend, supra, 15 Cal.3d at p. 783; see also Owens v.
Superior Court (1980) 28 Cal.3d 238, 247, fn. 8 (Owens); Malengo v. Municipal
Court (1961) 56 Cal.2d 813, 816 (Malengo).) One court described the rule as
follows: “The 10-day period does not begin to run until the defendant announces
ready for trial on the date to which the trial was continued, or on a later date to
which the defendant impliedly or expressly consented if the case was again
continued.” (Medina v. Superior Court, supra, 79 Cal.App.4th at p. 1286, italics
added.)
Nor is there authority for the proposition that petitioner’s request to “trail”
somehow was not a request for continuance. 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. (See Townsend, supra, 15 Cal.3d at p. 783 [defense
counsel’s request to trail within the 10-day grace period constituted an
“affirmative request[] for delay”]; Stephens v. Municipal Court (1986) 180
Cal.App.3d 189, 195.)
Our conclusion is consistent with the legislative history of the enactment.
Prior to the 1959 amendment of section 1382 that created this 10-day period, case
16
law supported the view that “a defendant was entitled to go to trial, in cases where
he had consented to a continuance beyond the [initial] prescribed period, on the
date to which he last consented unless good cause for further delay was shown.
[Citation].” (Malengo, supra, 56 Cal.2d at p. 815, italics added; see also Owens,
supra, 28 Cal.3d at p. 244.) It is evident that such a rule subjected the prosecution
to considerable time pressure.
In connection with the 1959 clarification and reform of section 1382, the
Legislature acted on a Judicial Council recommendation that the statute be
amended to establish that the prosecution is not required to be prepared to go to
trial on the last day of continuance beyond the 60-day period, but would be
afforded a 10-day grace period “ ‘after the last date for trial to which the
defendant consented.’ ” (Owens, supra, 28 Cal.3d at p. 245, italics added, quoting
Judicial Council of Cal., Seventeenth Biennial Report, supra, p. 32; see also Note,
Selected 1959 Code Legislation, supra, 34 State Bar J. at pp. 717-718
[“Previously, if postponement of a trial was attributable to defendant, his right to a
speedy trial was clouded [citations]. Now, when defendant secures postponement
to a date beyond the statutory period of § 1382, the case must be dismissed unless
defendant is brought to trial within 10 days after the last date for trial to which he
himself has consented (Pen. Code § 1382)” (boldface omitted)]; Tudman v.
Superior Court, supra, 29 Cal.App.3d at p. 133.) As we explained in Owens,
supra, 28 Cal.3d 238, because the Judicial Council’s proposed amendment to
section 1382 was adopted verbatim in the 1959 legislative enactment, we can
conclude that the Judicial Council’s explanation of the measure reflected
legislative intent. (28 Cal.3d at p. 246.)
Petitioner counters that we concluded in Owens, supra, 28 Cal.3d 238, that
the initial 60-day period (or 45-day period in the case of misdemeanor charges)
established by section 1382(a) would not be tolled by a defense request for a
17
continuance to a date within the initial period. Thus if petitioner had requested a
continuance to a date within the initial 45-day period, the request would not have
initiated a new 45-day period, nor would it toll that period during the defense-
requested continuance. Petitioner argues that the reasoning of Owens would
dictate that defense requests for delay to a date within the 10-day grace period
likewise should not toll or recommence that period.
We find petitioner’s argument unpersuasive. Further examination of our
decision in Owens, supra, 28 Cal.3d 238, demonstrates that the discussion upon
which petitioner relies concerned the initial 45- or 60-day statutory period and
turned primarily upon the pertinent statutory language and its legislative history —
language inapplicable to the 10-day grace period.
In Owens, the People contended that defense requests for delays within the
initial 60-day statutory period tolled or extended the 60-day period, but we
disagreed. We explained that “[p]rior to 1959, the statutory right to dismissal for
noncompliance with the 60-day requirement was extended only to ‘a defendant,
whose trial has not been postponed upon his application . . . .’ There was no
provision for a 10-day ‘grace period,’ and the statute was unclear as to whether an
accused who obtained a postponement of his trial to a date past the 60-day limit
thereby lost forever his statutory rights to a speedy trial and a dismissal.
Moreover, section 1382 did not indicate whether these statutory rights were
affected by an accused’s request for a postponement to a date within the 60-day
period.” (Owens, supra, 28 Cal.3d at p. 244, fn. omitted.) Referring to the initial
statutory period, we stated that “the Judicial Council’s explanation of its
recommendation can leave little doubt that the Legislature . . . intended the 1959
amendment to ‘establish[] that dismissal under Section 1382 may be had even
though the defendant has previously consented to a delay beyond the statutory
period’ and to ‘eliminat[e] the possibility that delays attributable to a defendant
18
which are wholly within the statutory period may prevent dismissal.’ [Citation.]
These desired effects are incompatible with a rule that delays requested by the
accused toll the running of the statutory period.” (Id. at p. 246, fn. omitted.)
We explained that, on its face, the statute does not “mention . . . suspending
the running of the 60-day period. It provides that an accused is entitled to be
brought to trial ‘within 60 days after the finding of the indictment or the filing of
the information . . . .’ This unqualified language seems to require a trial within 60
consecutive calendar days of the filing of an information. This is consistent with
the method of computing time which is ordinarily employed in this state. (See
Code Civ. Proc., § 12.) Had the Legislature intended that the 60 days were to
consist only of those days of delay not requested by the accused, it would surely
have made explicit provision for such an adjustment.” (Owens, supra, 28 Cal.3d
at pp. 243-244, fn. omitted.) 3
As can be seen from the description above, the conclusion we reached in
Owens rested upon our effort to construe the statutory language governing the
initial period in which a defendant is to be brought to trial. The 10-day grace
period, on the other hand, was created by distinct statutory language focused upon
the defendant’s request for or consent to delay as a guidepost marking the point

3
In addition, we expressed concern that the rule advocated by the
prosecution, namely that defense continuances should toll the initial statutory
period, would lead to gamesmanship and “endless wrangling” to determine
whether a delay stemmed from the prosecution or the defense. (Owens, supra, 28
Cal.3d at p. 248.) We also referred to the extensive period that is afforded to the
prosecution for preparation for trial. (Id. at p. 249.) Noting our Legislature’s
effort to protect the accused’s right to speedy trial as well as the interest of the
people of the state in speedy determinations in criminal cases (see Cal. Const., art.
I, § 29, subsequently enacted in 1990), we cautioned that the right to speedy trial
should not be weakened in the manner suggested by the prosecution.
19


that initiates the 10-day period in which the prosecution must bring the case to
trial. Indeed, in Owens, we viewed the 10-day grace period as running from the
last date (beyond the initial statutory period) to which the defense has consented.
(Owens, supra, 28 Cal.3d at pp. 245, 247.) In effect, the statute contemplates a
moving starting point for the 10-day grace period. By contrast, the language
governing the initial 45-day or 60-day period employs a fixed starting point that is
independent of any consent on the part of the defendant. The statutory language
concerning this initial period does not refer to requests for continuance within this
period, unlike the language governing the initiation of the 10-day grace period.
Petitioner counters that not every failure to object to a continuance within
the 10-day grace period initiates a new 10-day period. Petitioner cites a case
holding that a defendant’s failure to object — ordinarily treated as consent, as we
have seen — to a prosecutor’s request to trail from day to day within the 10-day
period does not initiate a new 10-day period each time the case is trailed. (See
Bryant, supra, 186 Cal.App.3d 483.) But the reason for this rule is plain, and, as
we shall explain, does not apply when the delay is attributable to the defense.
In addition to enabling courts to ensure the availability of judicial
resources, the 10-day grace period afforded by section 1382(a)(3)(B) serves the
interests of both the prosecution and of defendants because, while maintaining the
defendant’s right to speedy trial, it also “protects the People by giving them 10
days if necessary.” (Medina v. Superior Court, supra, 79 Cal.App.4th at p. 1287;
see also Bailon v. Superior Court (2002) 98 Cal.App.4th 1331, 1345-1346.)
Implicitly recognizing the importance to the prosecution of having the full 10 days
available to it, various decisions have concluded that a court should not enter a
dismissal pursuant to section 1382 for prosecutorial delay within the 10 days even
in the absence of a showing of good cause for delay. (Malengo, supra, 56 Cal.2d
at pp. 815-816; Alexander, supra, 31 Cal.App.4th at p. 1131, and cases cited;
20
People v. Ferguson (1990) 218 Cal.App.3d 1173, 1180-1181; Bryant, supra, 186
Cal.App.3d at pp. 496-497; People v. Hernandez (1979) 97 Cal.App.3d 451, 454-
455, and cases cited; see also Bailon v. Superior Court, supra, 98 Cal.App.4th at
pp. 1345-1346 [although the prosecution is entitled to the full 10 days established
by § 1382, it can stipulate to a shorter period].)
Accordingly, as the court observed in the Bryant decision, a defense
objection concerning a prosecutor’s request to trail within the 10-day period would
“serve[] no pragmatic function.” (Bryant, supra, 186 Cal.App.3d at p. 499.) It
would not be reasonable to infer that the defense voluntarily consents to a
continuance under these circumstances. As the court stated in Bryant: “In effect,
the 10-day grace period, by precluding any effective defense objection, effects the
consent of the defendant to be brought to trial at any time within the 10-day
period. Given this compelled consent, by operation of law, . . . it is logically
inconsistent to conclude that defendant’s failure to expressly object to trailings
within the 10 days constitutes an implicit consent to further delay within that
period.” (Ibid.)
By contrast, 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. Once the
defendant has announced readiness for trial and initiated the running of the 10-day
period, as we have seen, the defendant essentially has demanded immediate trial,
subject to the prosecution’s 10-day grace period. If defense counsel is not
available on a trial date during the 10-day period, the delay is attributable to the
defense, and it is reasonable to infer, at least in the absence of a personal objection
by the defendant, that the defense consents to or requests a further continuance.
After all, in this circumstance it is the defense that is demanding that the
prosecution and the courts commit all possible resources to try the defendant
21
within that brief period, subject to the sanction of dismissal upon failure to do so
without legal cause.
We believe the 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. When a defendant appears on the trial date and requires a later trial within
the 10-day period, especially at a point late in that period, both the prosecution’s
ability to secure the attendance of witnesses and the court’s ability to provide a
forum for the trial are impaired.
We acknowledge that the prosecution, public defenders, and the courts all
must juggle heavy caseloads. If a defense request to trail within the 10-day grace
period were not to operate to recommence the 10-day period following the new
trial date, the burden would fall on the prosecution and the court — on pain of
dismissal — to ensure that a courtroom is available and that the prosecutor and all
of his or her witnesses also are available on the new date, which may fall close to
or on the final date for trial permitted under the statute. If a defense request
reinitiates the 10-day period, on the other hand, the burden falls upon the
defense — but the defense thereby suffers only a brief delay, at least part of which
actually serves the defense’s interest. Under these circumstances, we conclude it
is reasonable and consistent with legislative intent to recognize that the burden of
remaining prepared and available rests upon the defendant.
C
The dissenting justice in the Court of Appeal, followed here by petitioner,
relied upon this court’s decision in Johnson, supra, 26 Cal.3d 557, to support the
proposition that the consent to postponement attributable to petitioner’s counsel
was not binding on petitioner because the delay was attributable to appointed
defense counsel’s conflicting obligations to other clients. The dissenting justice
22
cited the Johnson decision to support the broad claim (based upon equal protection
principles) that an indigent defendant’s speedy trial rights should not be
subordinated to the needs of an overburdened public defender’s office.
In Johnson, supra, 26 Cal.3d 557, we decided that under the circumstances
of that case, the appointed defense counsel lacked authority to waive his client’s
statutory speedy trial rights. (Id. at p. 568.) We explained that appointed defense
counsel may not override the defendant’s personal objection to a continuance
when the sole reason for the continuance is counsel’s need to accommodate his or
her obligations to other clients and not to serve the particular defendant’s best
interest. “The power of appointed counsel to control judicial strategy and to waive
nonfundamental rights despite his client’s objection [citation] presumes effective
counsel acting for the best interest of the client.” (Id. at p. 566, fn. omitted.) We
added that “defense counsel should not be placed in a situation in which he must
subordinate the right of one client to a speedy trial to the rights of another client;
once counsel must confront that dilemma, his best efforts may be insufficient to
protect the individual rights of each of his clients.” (Id. at p. 568, fn. 10.) We
warned that section 1382(a) would be rendered meaningless if defense counsel
could delay trial endlessly to accommodate their own calendar conflicts.
We concluded that “the consent of appointed counsel to a postponement of
trial beyond the statutory period, if given solely to resolve a calendar conflict and
not to promote the best interests of his client, cannot stand unless supported by the
express or implied consent of the client himself.” (Johnson, supra, 26 Cal.3d at
p. 567, fn. omitted.) We noted, however, that “failure of defendant or his counsel
to make timely objection to a postponement constitutes implied consent to the
postponement.” (Id. at p. 567, fn. 7.) We also concluded that our Townsend
decision did not suggest a different result, because it, too, acknowledged that
exceptional circumstances such as ineffective assistance of counsel could render
23
inoperative the waiver of speedy trial rights by counsel over the client’s objection.
(Johnson, at p. 567.)
In that part of our decision in Johnson in which we were called upon to
determine whether appointed counsel’s congested trial schedule constituted good
cause for continuance, we observed that ordinarily a delay for the defendant’s
benefit or for certain unforeseen circumstances constitutes “good cause to avoid
dismissal.” (Johnson, supra, 26 Cal.3d at p. 570.) The right to speedy trial might
be violated, however, if delay occurs simply because of routine “failure of the
state to provide enough courtrooms or judges to enable defendant to come to trial
within the statutory period. The right may also be denied by failure to provide
enough public defenders or appointed counsel, so that an indigent must choose
between the right to a speedy trial and the right to representation by competent
counsel.” (Id. at p. 571.) We concluded that chronic overloading of appointed
counsel and “routine assignment of heavy caseloads to understaffed offices, when
such practice foreseeably will result in the delay of trials beyond [the statutory
period] without defendant’s consent, can and must be avoided.” (Id. at p. 572,
italics added.) As we further observed: “A facile assumption that conflicts in the
calendar of the public defender constitute good cause for delay may result in
denying indigent defendants the equal protection of the laws.” (Ibid.)
In the present case, we acknowledge the concern of the dissenting justice
that indigence should not cause defendants to lose their right to speedy trial at the
hands of an overworked public defender’s office. In Johnson, however, although
we acknowledged equal protection concerns in deciding that appointed counsel’s
chronic calendar congestion did not constitute good cause for delay over the
defendant’s personal objection, we did not disapprove the rule that counsel
generally have authority to waive their client’s statutory right to speedy trial.
Throughout our opinion, we explained that counsel lacked authority to waive the
24
client’s right over the client’s express objection when the reason is solely to
accommodate appointed counsel’s conflicting obligations to other clients.
(Johnson, supra, 26 Cal.3d at pp. 567 & fn. 7, 568-569.) We stressed that the
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.
(Ibid.; see also Eshaghian v. Municipal Court, supra, 168 Cal.App.3d at p. 1080.)
The circumstance that petitioner did not object personally when defense
counsel consented to a continuance serves to distinguish the present case from
Johnson, supra, 26 Cal.3d 557. If petitioner personally had objected to the one or
two days’ continuance contemplated by her counsel, she might have been offered
alternative counsel who could be ready for immediate trial — as the trial court
itself recognized. Because she did not object, that option was not explored. In the
absence of an objection, she is not entitled to dismissal. Contrary to the view of
the dissenting justice in the present case, counsel’s objection to a trial date later
than September 18 does not change this result. Counsel had authority to and did
consent to postponement of petitioner’s trial once the George matter was selected
as counsel’s sole case to be sent to the trial department for trial. Despite counsel’s
attempt to restrict consent to a single day within the original 10-day period, trial
counsel’s consent to a new 10-day grace period was initiated by operation of law,
without respect to counsel’s contrary desire for a shorter continuance, and
counsel’s consent bound petitioner in the absence of a personal objection on
petitioner’s part. 4

4
Because we conclude that our decision in Johnson, supra, 26 Cal.3d 557,
does not support petitioner’s claim that she was entitled to dismissal, we do not
consider the request of real party in interest that we re-examine that decision.
25


III
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
26



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Barsamyan v. Appellate Division of the Superior Court of Los Angeles County
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 144 Cal.App.4th 602
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S148712
Date Filed: August 7, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Marvin Lager, Fumiko Hachiya Wasserman, Debre Katz Weintraub, Donna Groman and Bobbi
Tillmon

__________________________________________________________________________________

Attorneys for Appellant:

Michael P. Judge, Public Defender, Karen Nash and John Hamilton Scott, Deputy Public Defenders, for
Petitioner.

Gary Windom, Public Defender (Riverside) and Richard V. Myers, Deputy Public Defender, for Law
Offices of the Riverside County Public Defender as Amicus Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Rockard J. Delgadilo, City Attorney, Debbie Lew, Assistant City Attorney, Sunnie Lee Daniels, Katharine
H. MacKenzie and Candice I. Horikawa, Deputy City Attorneys, for Real Party in Interest.

Steve Cooley, District Attorney (Los Angeles), Lael R. Rubin, Phyllis C. Asayama and Tracey Lopez,
Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Real
Party in Interest.



Counsel who argued in Supreme Court (not intended for publication with opinion):

John Hamilton Scott
Deputy Public Defender
320 West Temple Street, Room 590
Los Angeles, CA 90012
(213) 974-3050

Katharine H. MacKenzie
Deputy City Attorney
500 City Hall East
200 N. Main Street
Los Angeles, CA 90012
(213) 473-6900


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:
Thu, 08/07/200844 Cal. 4th 960, 189 P.3d 271, 81 Cal. Rptr. 3d 265, 45 Cal. 4th 76a modificationS148712Review - 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.