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.