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Bailon v. Superior Court of Los Angeles County6/3/2002
As modified June 27, 2002; no change in judgment. Petition for rehearing denied.
ARMANDO BAILON, JR., PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, APPELLATE DIVISION, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.
ORIGINAL proceeding, petition for writ of mandate. Writ granted. (Super. Ct. No. BS073619) (William C. Beverly, Jr., Judge)
Michael P. Judge, Public Defender, Kenneth W. Jones and John Hamilton Scott, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Steve Cooley, District Attorney, Patrick D. Moran and Brentford J. Ferreira, Deputy District Attorneys, for Real Party in Interest.
The opinion of the court was delivered by: Woods, J.
CERTIFIED FOR PUBLICATION
SUMMARY
Claiming violation of his statutory right to a speedy trial, Armando Bailon, Jr. moved to dismiss his misdemeanor case. The trial court denied the motion, and the Appellate Division of the Superior Court denied Bailon's subsequent writ petition to that court challenging the trial court's ruling. In this court, Bailon now seeks a writ of mandate directing the Appellate Division to vacate its prior order and directing that court to issue a new order compelling the trial court to dismiss the misdemeanor case against Bailon. We issued an order to show cause, and after considering the briefing and oral argument from Bailon and the People, we grant the writ petition.
FACTUAL AND PROCEDURAL SYNOPSIS
Bailon was cited for a misdemeanor violation of Vehicle Code section 23152, subdivision (a), driving under the influence of drugs or alcohol. On November 7, 2001, after he was appointed counsel and while he was free on his own recognizance, Bailon was arraigned and entered a not guilty plea. On November 21, Bailon "waive statutory time," but requested a trial date of December 14. On December 14 ("Day 00 of 10" according to the court's minute order), Bailon appeared but the prosecutor did not, and trial was continued to December 21.
On December 21 (a Friday and day "7 of 10"), the prosecutor (Steven Heller) said, "Your Honor, to the best of my ability to tell at this moment, the People are ready; and so I guess we're going to need to trail this over to Monday as 10 of 10 with a panel ordered. I spoke with [defense counsel] about possibly avoiding that, but . . . apparently it's not possible." The prosecutor said no disposition was possible either and gave a three- to four-day estimate for trial. This exchange followed:
"The court: I think we have one judge here on Monday [Christmas Eve]. Any possibility we can start this on Wednesday?
"[Defense counsel (Patricia Hutton-Payton)]: Your Honor, Mr. Bailon would stipulate for last day being Wednesday.
"The court: Excellent.
"[Defense counsel]: That we could start trial on that date."
"The court: That will be the 26th. All right. . . . Mr. Bailon, you have the right to have your trial start at the latest on Monday. Do you understand that right, give up that right, and agree that we can start this matter on Wednesday, the 26th?
"[Bailon]: Yes, sir.
"The court: Counsel join in the time waiver?
"[Defense counsel]: Yes.
"The court: All right. The matter will be set for trial as 10 of 10 on Wednesday, December 26th." (Italics added.)
The court directed the clerk to call the jury room and order a panel for that date. The prosecutor said nothing.
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