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Bailon v. Superior Court of Los Angeles County6/3/2002
ation from the trial prosecutor contradicting such an agreement.
Subsequent proceedings only serve to emphasize this point. On December 26, when both sides knew that there were no jurors to try the case, the court again recounted for the record what had occurred on December 21, specifying repeatedly that December 26 was "10 of 10" and the "last day" Bailon could be tried. The People (through a different prosecutor) again said nothing about the procedural posture of the case, arguing only that the juror problem constituted good cause for the continuance. On December 27, at the time Bailon argued his motion to dismiss, the prosecutor specifically represented on the People's behalf that Bailon had only "waiv a day," and that the People had agreed to December 26 not only as the continued date, but as the "last day" on which Bailon could be tried. Even in the face of defense counsel's plain statement that he was making a record on the point for the purpose of appellate review if necessary, there was never any expression of uncertainty, equivocation or request for time to communicate with the prosecutor who had appeared on December 21 (when the trial was put over to December 26) to inquire further. The prosecutor again argued only that the clerical miscommunication constituted good cause.
Because we conclude that the People could and did agree that December 26 was the last day for trial, we need not address Bailon's further contention that, if the stipulation was unenforceable, his consent to delay trial on the basis of such an agreement was itself invalid. Suffice it to say that it is clear the trial court obtained Bailon's waiver of his speedy trial rights subject to the qualification that December 26 would be the last day on which he could be tried, and, as they concede, the People stood "mute" (and later "affirmatively agreed" that the People had joined in this stipulation at the time it was made, yet dispute the point for the first time in this court). "This type of manipulation of procedural rules for adversarial advantage should be avoided in our legal system. And a rule which would encourage this sort of dissembling and brinksmanship should not be promulgated by this court." (Owens v. Superior Court, supra, 28 Cal.3d at p. 247.)
DISPOSITION
The petition is granted. Let a peremptory writ issue directing the Appellate Division of the Superior Court to vacate its order of January 25, 2002, and to issue a new and different order directing the trial court to grant Bailon's motion to dismiss.
CERTIFIED FOR PUBLICATION
We concur:
LILLIE, P.J.
PERLUSS, J.
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