CURTIS E.A. KARNOW
See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 401. Matthew D. Metzger, Esq., San Francisco, for Appellant.
George Gascón, District Attorney of San Francisco, and Christopher R. Ulrich, Assistant District Attorney, for Respondent.
CURTIS E.A. KARNOW, Presiding Judge, BRUCE E. CHAN, Associate Judge, ANNE–CHRISTINE MASSULLO, Associate Judge.
JUDGMENT ON APPEAL
BY THE COURT:
This matter came before the court on January 11, 2013. After considering the evidence, arguments, and applicable law, the December 19, 2011 judgment is AFFIRMED.
I. DISCUSSION
This short form opinion is designed to provide the parties with a brief explanation of the reasons for the disposition, and assumes familiarity with the facts and arguments of the parties.
A. Nahinu was not brought to trial until November 3, 2011
Nahinu argues that he was not brought to trial in satisfaction of his speedy trial rights. We agree.
A defendant is brought to trial within the meaning of Penal Code § 1382 “when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.” (5 Witkin, California Criminal Law 4th (2012) Criminal Trial, § 318, p. 542, citing Rhinehart v. Superior Court (1984) 35 Cal.3d 772, 780, 200 Cal.Rptr. 916, 677 P.2d 1206.)
On November 1, 2011, the court acknowledged that a jury had not been requested or impaneled that day. The court also acknowledged that it had, on October 28, 2011, found good cause to continue trial until only that day. The court noted, however, that trial could not begin until the following day, November 2, and attributed this additional one-day delay of trial to Nahinu's refusal to stipulate to trial before a specific judge.
Then, with the matter now before Judge Cheng, on November 2, the court acknowledged that a jury had not been impaneled that day either, but stated that one would be impaneled on November 3. The court attributed the additional one-day delay to the parties desire to litigate Nahinu's motion to suppress. The court also noted that it found “good cause” for the additional one-day delay, but was unclear as to whether that finding was based only on holding the suppression hearing or some additional basis.
Thus, trial was delayed two additional days beyond November 1, which was the day to which the court had found good cause to continue trial on October 28. As such, Nahinu is correct that a jury was not impaneled on November 1, that the jury was not impaneled until November 3, and that he was not “brought to trial” until November 3, 2011. As Nahinu suggests on appeal, each delay likely constituted a further continuance of trial, requiring a finding of good cause under §§ 1050 and 1382. The record reflects no findings of good cause for these additional delays, however, leading us to conclude Nahinu's speedy trial rights were violated.
B. Nahinu has not shown prejudice from the delay
Nahinu argues that the combined continuances beyond the last day of October 28, 2011 constitute reversible error under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Specifically, he argues that “there can be no doubt at Appellant suffered irreparable damage. Appellant was denied the right to a speedy trial and was tried in violation of that right.” Nahinu does not, however, explain what “irreparable damage” he suffered, concluding only that continuing trial beyond the last day without good cause is sufficient to require reversal.
It is clear that a showing of prejudice is required, at least in felony cases, where the appellant argues denial of his statutory speedy trial right. ( People v. Villanueva (2011) 196 Cal.App.4th 411, 126 Cal.Rptr.3d 244;People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738.) A distinction has been made in misdemeanor appeals, however, starting with the holding in Avila v. Municipal Court (1983) 148 Cal.App.3d 807, 196 Cal.Rptr. 286, and based on the fact that a misdemeanor that has been dismissed under § 1382 cannot be filed again.
Multiple cases since, however, have disagreed with, but not overruled, Avila on this point. These decisions detail their agreed-upon view that the Avila court misunderstood the concept of prejudice as it applies in speedy trial claims, substituting the prejudice caused by denial of the motion for the prejudice caused by the delay in being brought to trial. (See People v. Hernandez (1992) 6 Cal.App.4th 1355, 1359, 8 Cal.Rptr.2d 324 [“The Avila court's discussion ... reveals that it confused the “prejudice” which justifies granting a motion to dismiss with the “prejudice” which results from the denial of that motion”], People v. Egbert (1997) 59 Cal.App.4th 503, 514, 68 Cal.Rptr.2d 913 [“appellate review of a statutory speedy trial issue requires consideration of the type of prejudice arising from the delay in prosecution, not the prejudicial effect caused by denial of the motion itself”], and People v. Aguilar (1998) 61 Cal.App.4th 615, 621, 71 Cal.Rptr.2d 411 [“The foundation for the decision in Avila rests upon its perceived distinction of a difference in the treatment of the concept of measuring prejudice when deciding a misdemeanor speedy trial motion as compared to a felony motion, an incorrect proposition”].) We believe these holdings indicate that an appellant making a speedy trial claim must show that he was prejudiced by the delay in being brought to trial. As the Aguilar court wrote, relying on Serna v. Superior Court (1985) 40 Cal.3d 239, 249, 219 Cal.Rptr. 420, 707 P.2d 793:
The standard to be used in either misdemeanor or felony prosecutions is discussed in [Serna ]: “Delays in arrest that are necessary for law enforcement purposes, i.e., those occasioned by inability to locate the accused or witnesses, or to conduct further investigation and gather evidence, do not violate the right to speedy trial unless the prosecution is delayed unreasonably. [Citation.] To determine if the delay is unreasonable and the right to speedy trial violated, ‘the prejudicial effect of the delay on [the accused] must be weighed against any justification for the delay.’ [Citation.]”
( People v. Aguilar, supra, 61 Cal.App.4th at p. 621, 71 Cal.Rptr.2d 411.)
Nahinu has failed to demonstrate any prejudice from the two-day delay in being brought to trial. Beyond a conclusory statement, he has not articulated how he was prejudiced by the initial continuance to November 1 or the subsequent delays until November 3, 2011. As such, Nahinu has not shown that the trial court's error requires reversal.
II. DISPOSITION
For the foregoing reasons, the trial court's December 19, 2011 judgment is affirmed.
IT IS SO ORDERED.
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