People v. Bilbrey

Filed 7/31/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
A150273 & A151401
v.
JAMES SAMUEL BILBREY, (Solano County
Super. Ct. Nos. FCR300980 &
Defendant and Respondent. VCR198866)
A jury found James Samuel Bilbrey guilty of attempted murder (Pen. Code,1
§§ 187/664), aggravated mayhem (§ 205), assault with a deadly weapon (§ 245,
subd. (a)(1)), and battery with serious bodily injury (§ 243, subd. (d).) The jury also
found true a knife-use enhancement (§ 12022, subd. (b)(1)) and a great-bodily-injury
enhancement (§ 12022.7, subd. (a)). The trial court denied Bilbrey’s motion for a new
trial and sentenced Bilbrey to state prison for an aggregate term of 11 years to life. We
affirmed the judgment on direct appeal. (People v. Bilbrey (May 14, 2013, A129236)
[nonpub. opn.].)
In November 2016, the trial court granted Bilbrey’s petition for a writ of habeas
corpus, based upon the ineffectiveness of trial counsel, and ordered a new trial. The
People filed a timely notice of appeal (A150273).
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of Background parts I and II, and Discussion
part I.
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
After filing the appeal, the People did not seek to set a trial date or bring the case
to trial. Nor did they seek a stay of trial court proceedings. In March 2017, Bilbrey filed
a motion to dismiss the information for violation of his speedy trial rights under
section 1382. The People opposed, arguing their pending appeal in case A150273
deprived the trial court of jurisdiction to rule on that motion. The trial court granted the
motion to dismiss on March 22, 2017. The People filed a timely notice of appeal from
the order of dismissal (A151401). In response to the People’s subsequent petition for
writ of mandate, we stayed the dismissal order pending resolution of the People’s appeal
from the trial court’s habeas ruling.
We granted Bilbrey’s unopposed motion to expedite the appeal from the habeas
ruling and, on our own motion, consolidated that appeal with the People’s appeal from
the dismissal motion for purposes of oral argument and decision.
We affirm both the order granting Bilbrey’s petition for writ of habeas corpus and
the order dismissing the case based on the violation of Bilbrey’s right to a speedy trial.
BACKGROUND
I.
The Trial2
A. The Prosecution Case
1. The Argument Outside the Bar
In the early morning hours of July 13, 2008, David Apple, Michael McDaniel,
Melvin Black, and Andrew Buchanan were at the Past Time bar on First Street in
Benicia. Apple identified Bilbrey as being in the bar that night, along with a friend of
Bilbrey’s, David Becchio.3 Apple heard Bilbrey say to someone, “I’m from Richmond.”
2
We derive our summary of the evidence presented at Bilbrey’s trial from our
unpublished 2013 opinion in Bilbrey’s direct appeal, No. A129236. We granted the
People’s unopposed request for judicial notice of the record in that appeal. From that
record and the exhibits filed with the petition for writ of habeas corpus, we have added
relevant information where necessary.
3
The witnesses all described Bilbrey’s friend as the taller of the two. It was
uncontested during trial, and confirmed by Bilbrey, that Bilbrey’s companion was
2
McDaniel also remembered Bilbrey and Becchio being in the bar, noticing them because
they were confrontational and stared at people. Buchanan said that inside the bar, Bilbrey
seemed upset and rude, talking in a disrespectful manner to people with whom he came in
contact.
Around 2:00 a.m., Apple left the bar to make a phone call. While Apple talked on
the phone, Bilbrey bumped him from behind. Apple turned around and said, “What’s
going on? What’s your problem?” or “Dude, what the fuck?” Bilbrey responded, “I’m
from Richmond.” Apple said: “It’s not where you’re from. It’s where you’re at.” or
“The hell with Richmond. We’re in Benicia.” At this point Apple and Bilbrey squared
off, as if to fight. McDaniel, Black, and Buchanan witnessed all or part of this
confrontation.
Someone said that Bilbrey had a knife, and McDaniel pulled Apple back. Both
Apple and Black saw Bilbrey holding a knife. According to Buchanan, Bilbrey said he
had a knife and wanted to fight.
Benicia Police Officer Mark Simonson was on patrol and noticed the men arguing
outside the Past Time bar. Simonson drove between the two groups and told them to go
their separate ways. He told Bilbrey and Becchio to walk north on First Street, while
Apple and his friends walked west on H Street.
Simonson then contacted Bilbrey and Becchio about two blocks up First Street.
Bilbrey said there had been an argument at the bar, but there was no problem and they
would like Simonson to call a cab for them. Simonson asked police dispatch to have a
cab sent, but about 30 seconds later a cab came down First Street. The driver, Ernest
Alameda, said he was en route to a fare, but would call and ensure that another cab was
coming. Simonson departed.
2. The Fight
Joseph Tomada and his sister, Rachelle Tomada (Rachelle), were also at the Past
Time bar that evening. They left the bar when it closed at 2:00 a.m., and walked down
Becchio. In reciting the facts, we refer to Becchio by name, even when the witnesses
were not able to name the companion.
3
First Street intending to go to Rachelle’s condominium. As they walked, they heard
some people talking and cursing, but did not know where the words were coming from,
and did not think the words were directed at them. Tomada heard the voices say they
were from Richmond and he yelled out “Faggots,” and told whoever it was to go back to
Richmond. Tomada and Rachelle then heard people coming up behind them and
Rachelle heard someone say, “What the fuck did you call me?” or “What the fuck did
you say?” Rachelle turned around and saw Bilbrey, holding a knife in his hand, and
Becchio.
Tomada heard Rachelle say, “He has a knife,” turned around, and saw Becchio in
front of him. Bilbrey was standing to the side with a knife in his hand. Becchio swung at
Tomada after saying, “You going to be a little bitch?” Tomada returned the punch,
hitting Becchio on the chin. Becchio fell to the ground, got up, and charged Tomada.
Tomada hit Becchio in the face and Becchio again fell to the ground.
As Tomada struck Becchio the second time, Bilbrey hit Tomada in the face.
Tomada saw a white flash, and everything went black. He backed up, trying to rub his
eyes, and felt something go into his mouth. He felt his teeth break and something slide in
and cut his tongue. Tomada felt his face and it seemed to him “like a giant razor cut”
down the side of his face and he felt his “whole face kind of flap” when he exhaled. He
realized he had been cut and he threw a punch at the face of the brown shadowy figure he
could perceive in front of him. Bilbrey fell to the ground, and Tomada felt something in
his leg that caused him to buckle and fall on top of Bilbrey. Tomada continued punching
Bilbrey on the ground, trying to hold down the hand in which Bilbrey held the knife.
Eventually, the struggle on the ground stopped. Someone helped Tomada up and
led him to a taxi where he laid across the trunk.
Other prosecution witnesses, including the taxi driver, as well as McDaniel,
Black, and Buchanan, corroborated key aspects of the Tomadas’ account. These included
Bilbrey and Becchio initiating the encounter with the Tomadas by running up to them,
Bilbrey’s possession of a knife or something “shiny” and that none of the participants in
the earlier verbal altercation punched or kicked Bilbrey or Becchio.
4
3. Following the Fight
Officer Simonson had just returned to the police station after calling a cab for
Bilbrey and Becchio when he received a dispatch for a knife brandishing on First Street.
He arrived on the scene to find Tomada leaning over the back trunk of a cab, bleeding
badly. Becchio was sitting nearby on the curb, and Bilbrey was lying motionless on the
sidewalk with several facial injuries.
Tomada and Bilbrey were transported to a hospital. Tomada had a six-centimeter
laceration on his cheek, about one to one and one-half centimeters deep, two to three
inches from the carotid artery; a through-and-through laceration of the tongue; and a
penetrating wound to the floor of his mouth, two to three inches from the jugular vein.
Tomada’s right eye was split open from front to back. Tomada now has no vision in that
eye, which will not recover. Tomada also suffered nerve injury to his left eye and does
not have full sight in that eye. According to Tomada, his left eye has 20/80 vision,
making him legally blind. He testified that a third of his tongue is hard scar tissue and he
can taste nothing but saltiness in that portion of the tongue. He lost halves of two teeth
and he has a scar where he was cut on the face.
Bilbrey was diagnosed with a traumatic brain injury and disconjugate gaze,
meaning that his eyes were not working in synch. A traumatic brain injury means that
the brain has been injured “to make it not function properly.” The terms “traumatic brain
injury” and “concussion” are interchangeable, as both mean being hit in the head hard
enough to either lose consciousness or alter one’s thinking. Bilbrey’s blood alcohol
content was 0.224%.
Officer Kenneth Hart spoke with Bilbrey at the hospital. Bilbrey stated that he
had been drinking in the Past Time bar with Becchio and that there had been a non-
physical argument with some young men, who had called him a punk. He and Becchio
then walked down the street and asked an officer to call them a cab. The officer
requested that a cab be sent and left the scene. Bilbrey then said that he and Becchio got
into an argument with a man who was walking with a woman. During the argument, the
man punched Bilbrey, knocking him down. Bilbrey walked across the street, but when
5
he turned, he saw Becchio fighting the man. Bilbrey returned and was punched and
knocked down again. Bilbrey told Hart that this was all he remembered and that he did
not remember who had started the fight.
Bilbrey told Hart that he did not remember if he had a knife and denied
brandishing a knife in front of the bar. Bilbrey then admitted that he might have cut
Tomada and said, “I think I cut him when I went down the second time.” Bilbrey then
told Hart that he was swarmed by a group of people who began punching and kicking
him. While he was down, he was able to pull the knife out of his pocket, open it, and cut
Tomada.
Bilbrey never mentioned being threatened by a group of people when he spoke to
Officer Simonson in front of the bar and never mentioned fearing for his life.
B. The Defense Case
Bilbrey began by testifying that he had a nerve disorder called Charcot-Marie-
Tooth (CMT), which causes nerve degeneration and muscle loss. The disorder caused
Bilbrey weakness in his hands and legs.
Bilbrey carried a knife for protection because he had been beaten and robbed in
the past. On the night of his fight with Tomada, Bilbrey had the knife clipped onto the
top of his pants.
Bilbrey testified that he and Becchio went to the Past Time bar around 1:00 a.m.
While in the bar, he did not mention Richmond and did not threaten or intimidate anyone.
At last call, Bilbrey made a comment to a woman that apparently offended her. When he
left the bar a few minutes later, Apple confronted him about the comment, asking, “Why
did you disrespect my friend?” McDaniel, standing next to Apple, said: “What the fuck
is your problem? Do you want to get fucked up?” Bilbrey said he was sorry if he
offended anyone and didn’t want any problems. He went back into the bar to get Becchio
and when they exited, Apple and McDaniel again confronted and harassed them. They
began to walk away and Becchio yelled, “Fuck you, punks.” The group in front of the
bar then began threatening them and someone yelled, “You better fuckin’ keep walking
or you are going to get shot.” Bilbrey turned and said: “Fuck you, punks. Don’t threaten
6
me. I already said I was sorry, and I told you we were leaving.” Bilbrey also said that he
was from Richmond and was not scared of them.
The men started walking toward Bilbrey, and Bilbrey became scared. He took the
knife from his pants, opened it and held it up in the air, saying, “Don’t do it. Back off.”
Bilbrey put the knife back on his pants and he and Becchio turned and started walking up
First Street. They sat down on a bench about two blocks up First Street and Bilbrey saw
Tomada and Rachelle across the street, arguing and yelling at each other. A police
officer pulled up and broke up the argument. Becchio flagged down the officer and asked
if he could call a cab for them. The officer told them they would have to get their own
cab. Bilbrey told the officer that he was scared because of an argument in front of the bar
in which he had been threatened, but the officer told them to keep walking and drove
away.
Just before the officer left, Bilbrey and Becchio flagged down a cab. The cab
driver said he had a fare in front of them and could not give them a ride. Tomada and
Rachelle then crossed the street to the cab, stepped onto the sidewalk near Becchio, and
started yelling at them about taking their cab. Bilbrey yelled back that they weren’t
taking the cab and Tomada punched him on the side of the head. The punch almost
knocked Bilbrey out. Bilbrey fell to the ground and saw Tomada coming at him as he got
up. Bilbrey felt dizzy. Bilbrey started across the street to get away, but when he turned
around, he saw Becchio and Tomada in a wrestling hold. He then heard yelling and
screaming from the west side of the street and saw McDaniel, with what looked like a
two-foot-long pipe or stick in his hand, accompanied by someone else. McDaniel yelled,
“What is up now? You are dead, motherfucker.” Bilbrey yelled at them that cops were
on the way in order to get them to back off.
Tomada then came in Bilbrey’s direction, so Bilbrey put his knife out in front of
him and yelled at Tomada to back off. Tomada swung at Bilbrey and Bilbrey struck back
with the knife. It felt to Bilbrey that he had contacted Tomada, but he did not see where
he hit him. Tomada’s punch connected and Bilbrey was knocked to the ground. Bilbrey
was not able to get back up and had not intentionally stabbed Tomada in the eye, mouth
7
or face. When on the ground, multiple people started punching and kicking him at the
same time and he was swinging his hands, still holding the knife. He was knocked
unconscious and woke up at the hospital. He could not see straight for about a week.
The defense also presented evidence concerning prior incidents of violence by
Tomada, in support of Bilbrey’s self-defense. In rebuttal to that evidence, the
prosecution introduced evidence of an incident in El Cerrito, four days before the fight
between Tomada and Bilbrey. Reid Ainsworth testified that Bilbrey had brandished his
knife and threatened to cut him.4
The defense presented no expert testimony on any subject.
In her closing, defense counsel argued to the jury that Bilbrey had acted in self-
defense. Counsel explained self-defense applied to, and negated, each of the crimes with
which Bilbrey was charged. To this end, counsel focused on discrepancies between the
varying accounts of the prosecution’s witnesses and challenged their credibility. The
court instructed the jury on the elements of self-defense, including the mutual-combat
variation and the limitations on contrived self-defense and the right to use force in self-
defense only as long as the danger exists or reasonably appears to exist.
Upon defense counsel’s request, the court also instructed the jury that it could
consider Bilbrey’s voluntary intoxication in deciding whether he acted with the specific
intent to kill or the specific intent to permanently disable or disfigure Tomada. Defense
counsel argued the intoxication defense briefly, noting that the prosecution was required
to show an elevated level of intent for the “serious” crimes of aggravated mayhem and
attempted murder.
Counsel’s closing argument also briefly referred to Bilbrey’s “neurological
disease” and muscle weakness in noting the size and strength disparities between Bilbrey
and Tomada. Counsel reminded the jury of Bilbrey’s concussion as relevant to both the
4
The discovery of the El Cerrito incident, first provided to the defense midtrial,
prompted the trial court to acknowledge prejudice to Bilbrey’s defense and offer him a
mistrial. After conferring with Bilbrey, defense counsel declined the offer.
8
reasonableness of his belief in the need to defend himself and whether he had the specific
intent to maim or kill Tomada.
C. Sentencing
At sentencing, the court dismissed the fourth count (§ 243, subd. (d), battery
causing severe bodily injury), along with its enhancements, as a lesser included offense.
Using the count of attempted murder as the principal determinate count, the court
imposed the midterm of seven years, plus three years for the knife enhancement under
section 12022.7, subdivision (a), plus one year for the great-bodily-injury enhancement
under section 12022, subdivision (b)(1)—for a total base term of 11 years. On the assault
count, the court imposed the midterm and stayed the sentence and enhancements pursuant
to section 654. On the count of aggravated mayhem, the court imposed an indeterminate
term of life with the possibility of parole, to run concurrently with the determinate term.
II.
The Habeas Proceedings
In 2013, Bilbrey filed a petition for writ of habeas corpus, claiming he was denied
the right to effective assistance of counsel at trial. Bilbrey alleged his trial counsel, Laura
Petty, had: (1) failed to consult with an expert witness about the effects of his
intoxication, his neurological disorder, and his concussion on his mental and physical
state during the fight with Tomada; (2) failed to present a strong and adequately
researched defense of self-defense; and (3) improperly rejected the trial court’s offer to
declare a mistrial upon the disclosure of the damaging El Cerrito rebuttal evidence. The
trial court issued orders to show cause and held a six-day evidentiary hearing during
which both Bilbrey and the People presented evidence.
9
A. Bilbrey’s Habeas Case
1. Dr. John Greene’s Medical Expert Testimony
Dr. Greene testified as an expert in forensic psychiatry. Greene’s work includes
evaluating criminal defendants for mental-state defenses, including mental illness and the
effects of alcohol and traumatic brain injury on a person’s judgment and function.
Bilbrey’s habeas counsel explained the purpose of Greene’s testimony was to
address “had trial counsel consulted with a forensic psychiatrist . . . would they have been
able to present evidence that would be relevant to the defense and that could have
resulted in a different outcome.” Greene personally evaluated Bilbrey and reviewed the
trial record in preparation for his testimony.
a. The Effects of Alcohol
Greene described alcohol as causing “a decrease in overall functioning, a decrease
in the judgment and a decrease in perception, decrease in accuracy. As a person drinks
more alcohol, his or her “ability to operate with gross motor and fine motor activity
decreases.” A reduction in gross motor skills affects a person’s ability to aim or wield a
tool with precision. Alcohol also “lowers one’s inhibition and . . . judgment.”
Greene noted that the record of Bilbrey’s trial indicated his blood alcohol content
was “0.2[%] at 3:00 in the morning” and estimated to be “around 0.26[%] at the time of
the incident.” A person with a blood alcohol level of 0.20% or more generally “has
substantial problems in fine motor skills . . . and gross motor skills in judgment and in
behavior in general.”
Alcohol consumption can also affect short-, intermediate-, and long-term memory.
Usually, “short term memory is affected first, then intermediate, then long term.” But
Greene explained it is possible for a very intoxicated person to “still remember things that
went on” and, though “things might be kind of hazy and details might be kind of
difficult . . . they will still be able to give some sort of a narrative.”
A person with a high alcohol tolerance “is able to regulate in some way their
presentation, or the actual physiological response” to alcohol as compared to a person
10
without such tolerance. Greene’s understanding of Bilbrey’s high alcohol tolerance came
just from speaking with Bilbrey, and he saw no indication that Bilbrey was malingering.
b. The Effects of a Traumatic Brain Injury
Based on his review of the trial record, Greene also confirmed Bilbrey had been
diagnosed as having sustained a concussion during the incident.
Greene testified about the effects of such traumatic brain injuries (TBI) on a
person’s perception and coordination. A TBI can occur when a person is struck in the
face or hits their head on a sidewalk. Depending on its severity, a TBI “can lead one to
lose their ability to understand what’s going on, their orientation, and their perception of
what is happening around them.” It can also affect memory, motor coordination, and
social judgment, and those effects can be magnified by acute alcohol intoxication.
c. Effects of Charcot-Marie-Tooth Syndrome (CMT)
Greene described CMT as a neurological disorder “where one’s peripheral, motor,
and sensory neurons are deteriorated in some fashion” leading to “coordination and
sensation problems in [one’s] hands, arms, legs, feet, et cetera.”
Bilbrey informed Greene that he was diagnosed with CMT and the disorder runs
in his family. Bilbrey reported “weakness in his upper and lower extremities [and]
difficulty in walking.” Greene opined it was reasonable to conclude that alcohol
intoxication would exacerbate the effects of CMT. Greene explained that such motor
impairment can also affect “a person’s subjective sense of vulnerability” and their
“perception of threat.”
His information about Bilbrey’s experience with CMT came from Bilbrey and his
family, not Bilbrey’s medical records. However, his review of Bilbrey’s medical records
during trial confirmed the CMT diagnosis. Greene did not perform a neurological
examination of Bilbrey or independently confirm the CMT diagnosis.
d. Cumulative Effects of Bilbrey’s Conditions
on Specific Intent
Ultimately, Greene explained it was reasonable to conclude that a “person with
alcohol intoxication of a level above a .20 who has suffered blunt force trauma to the
11
head and suffers from Charcot-Marie-Tooth syndrome” would experience “significant
psychomotor impairment.” Greene opined that a person in those circumstances would
have difficulty wielding a knife with great dexterity or intentionally inflicting the stab
wounds that occurred in this case.
2. Bilbrey’s Testimony
Bilbrey retained defense counsel Laura Petty to represent him in September 2008.
His trial occurred in December 2009. Over that span, Bilbrey and Petty met
approximately seven or eight times. They never met specifically to discuss his defenses
in the case, but they did have one conversation about them. Bilbrey asked Petty, “what is
our defense,” and she “said it was Joseph Tomada’s violent history.” Bilbrey understood
that to mean Tomada “had other altercations.” They did not discuss self-defense or its
elements. Bilbrey made no suggestions or demands about his trial defense, and Petty did
not ask. Bilbrey informed Petty that he was intoxicated on the night of the incident. He
gave Petty permission to review his medical records, which he assumed she did.
He also told her he had been struck in the head during the fight. Bilbrey believed
Petty knew about his concussion based upon her review of his medical records. They
also discussed the order of events during the fight, with Bilbrey telling her that “Joseph
Tomada struck me in the head before I used the weapon.” Specifically, he told her, “once
he hit me, I fell to the ground, hit the back of my head on the concrete, and I tried to get
back up. Well, I did get back up, but I was stunned. I was really dizzy.” He also told her
he felt like he was going to “pass out.”
Bilbrey informed Petty of his CMT diagnosis, and he permitted her to review his
medical records as to that condition, as well. Petty did not suggest retaining an expert,
but did ask Bilbrey about the symptoms of CMT. Bilbrey did not believe she asked what
his CMT symptoms were at the time of the incident. He told Petty that, at the time of
their meeting, he was experiencing weakness in his legs and hands.
Petty asked Bilbrey to describe his criminal history, and he told her everything he
could remember. He told her he could not recall everything he’d been arrested for.
Bilbrey told Petty about a prior DUI and a conviction for disturbing the peace. Petty did
12
not mention to Bilbrey that these incidents were not reflected in the prosecution’s pretrial
summary of his criminal history.
Bilbrey also described the El Cerrito incident to Petty, which they discussed
before the preliminary hearing in February 2009. Bilbrey told her he had not been
arrested or charged with any crime in association with it. Bilbrey obtained a copy of the
police report describing the El Cerrito incident on November 17, 2009. He obtained the
report after learning that it might exist, despite the lack of an arrest. To avoid any
“surprises” at trial, he gave a copy of the report directly to Petty. Petty said the report
was something that they’d “need to look into.”
3. Katherine Navarrete’s Testimony
Navarrete is Bilbrey’s oldest sister. She is familiar with CMT, because she has
seen it affect members of her family, including Bilbrey. She had observed Bilbrey walk
with a cane and change employment from physical labor to a desk job “due to lack of
strength.” She had also observed Bilbrey’s hands shake, and she saw him sporadically
drop things.
4. Kelly Carrara’s Testimony
Carrara is another of Bilbrey’s sisters. She is familiar with CMT, having observed
her mother suffer from it. She also suffers from CMT herself. The condition affects her
hand strength, and she cannot open bottles or jars without assistance. Carrara also
observed the effects of CMT in her brother as of 2008, describing Bilbrey’s inability to
service her son’s car “because he couldn’t do it anymore between the ability of holding
the tools or getting up and down from the ground.”
5. Michael Burt’s5 Strickland Expert Testimony
Burt is an attorney licensed in California since 1978. He is a member of an
organization that advises courts and lawyers about the standards and practices in capital
criminal cases. Burt’s training and experience includes the use of mental state defenses
5
Bilbrey also submitted Burt’s written declaration in support of his petition for
writ of habeas corpus.
13
in felony cases, meaning “anything that relates to the defendant’s ability to form specific
intent.” The court found Burt qualified to testify as a “Strickland6 expert” in “the
standards of practice of defense of felony cases in California.”
Burt reviewed the trial and habeas records in Bilbrey’s case and articulated why he
concluded Bilbrey’s trial counsel was “ineffective in a number of respects.” Burt’s
analysis was based solely on his review of the trial record and correspondence between
Bilbrey’s habeas counsel and trial defense counsel about the defense trial strategy and
tactics. Burt believed Petty knew there were at least two applicable defenses for Bilbrey:
self-defense and—based on evidence of Bilbrey’s intoxication, CMT, and head trauma—
mental state defenses. When evidence of such mental conditions is apparent, Burt
explained, “the lawyer has an obligation to investigate a mental state defense.”
a. Mental State Defenses
Burt explained the defense attorney’s “obligation to factually investigate the basis
for a mental state defense before rejecting that defense, even when it conflicts with other
defenses that are on the table.” Burt elaborated on defense counsel’s duty: “ ‘Defense
counsel should conduct a prompt investigation of the circumstances of the case and
explore all avenues leading to facts relevant to the merits of the case and the penalty in
the event of conviction. The investigation should include efforts to secure information in
the possession of the prosecution and law enforcement authorities. The duty to
investigate exists regardless of the accused’s admissions or statements to defense counsel
of facts constituting guilt or the accused’s stated desire to plead guilty.’ ” Investigation
of mental state defenses also involves the lawyer’s collection of the client’s records,
including intoxication tests and medical records, and talking to people who know the
client “to see how the client manifested symptoms of whatever issue you are
investigating.”
Equally important is the “retention and use of a qualified expert to take the fruits
of that investigation and opine as to the significance of the client’s mental disabilities or
6
Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
14
intoxication, whatever the particular issue is.” Such experts include “a psychiatrist or
neurologist or someone who is schooled and knowledgeable in the particular mental
disorders at issue.” The lawyer would retain an appropriate expert who would “typically
interview the client and render an expert opinion based on review of the collateral
records . . . and the interview material you had provided.”
In Burt’s opinion, where there is evidence that may support a client’s mental state
defense, it is not reasonable for a lawyer to abandon the defense without consulting an
expert. He also emphasized that the purpose of the expert is to educate the jury, not
defense counsel, so the need for an expert arises in all serious felony cases where a viable
mental defense is present. Burt opined that case law indicates that “counsel’s own
experience” and “subjective sense of whether or not a jury would like the defense” are
not adequate substitutes.
Relying on People v. Mozingo (1983) 34 Cal.3d 926 (Mozingo), Burt explained
that, when faced with two possible conflicting defenses, “counsel’s duty is to investigate
both lines of defense, and then decide after consultation with the client what applicable
defense should be followed.” The “standards are very clear that” rejecting a defense
without having investigated it factually “is ineffective assistance of counsel.”
b. Self-Defense
Addressing the viability of Bilbrey’s actual trial defense, Burt explained that,
when asserting self-defense, a lawyer must investigate the facts beyond the defendant’s
version of events. This includes investigating the victim’s propensity for violence,
comparing the defendant’s statements to the lawyer to those made to other persons, and
investigating the defendant’s own criminal history and propensity for violence, including
obtaining the defendant’s rap sheet. Burt also described the importance of presenting to
the jury any evidence corroborating the defendant’s story.
Under these principles, Burt explained why it was unreasonable for defense
counsel to assert self-defense in this case: “[e]specially in light of her representations to
the jury about the client’s lack of prior violence, to present a self-defense defense when
she knew or should have known that the defense would be completely undermined by
15
Mr. Bilbrey’s prior history of violence, by his inconsistent statements to the police, which
were highlighted by the People, and by the lack of corroboration.”
Articulating the prejudice to Bilbrey from counsel’s unreasonable tactics, Burt
explained that if counsel had not asserted self-defense, but instead had presented a mental
state defense, the People would not have been able to focus on Bilbrey’s prior history of
violence and portray him as “the guy who uses a knife.” Rather, a mental state defense
“would have taken off the table Mr. Bilbrey’s character for violence, which is only
applicable to the . . . self-defense situation, and it would have resulted in the production
of an expert testimony which would have been strongly supportive of a lack of specific
intent defense in the case.”
c. The Two Defenses Together
As the strengths and weaknesses of alternate defenses become apparent, Burt
continued, “the client has to be advised of the . . . pitfalls of both lines of defense before
you and the client . . . decide what defense you’re going to choose.” For the defense
lawyer, the “client’s exposure” to punishment is the “bottom line.” For Bilbrey, Burt
explained, “reasonably competent counsel” should have focused on avoiding guilty
verdicts on the aggravated mayhem charge, for which Bilbrey could be sentenced to life
in prison, and the attempted murder charge. The circumstances of Bilbrey’s case—“the
severity of the injuries inflicted, and the fact that Mr. Bilbrey had a knife and the victim
did not”—warranted consideration of whether self-defense was a viable or realistic
defense.
Defense counsel’s explanation in the record that Bilbrey’s self-defense would be
incompatible with his mental state defenses did not reflect what occurred at trial where
she proceeded to argue both defenses to the jury. Defense counsel’s decision to present
both defenses was “tactically unreasonable” and prejudicial to Bilbrey because her
mental-state arguments were not supported by any expert opinion evidence about the
“cumulative effect” of Bilbrey’s mental conditions. Thus, after the prosecution presented
evidence that Bilbrey’s blood alcohol content was above 0.2%, but that he was not so
intoxicated that he could not care for himself, “the implication was left that somebody
16
could be a .22 and could be perfectly okay to form the specific intent to kill and maim”
required for the attempted murder and aggravated mayhem charges, respectively.
B. The People’s Habeas Evidence
1. Testimony of Defense Counsel Laura Petty
Petty has been licensed to practice law in California since 1996. Bilbrey retained
her to represent him in the underlying criminal trial through jury trial and sentencing.
a. Decision to Present Self-Defense
Petty alone selected what defense to present at Bilbrey’s trial. Early in the case,
she decided to present a self-defense case, knowing it would require Bilbrey to testify and
place his credibility at issue. Petty knew when she selected self-defense that Bilbrey was
the only person involved who had a knife and that the victim was unarmed. Petty also
knew that, for self-defense to be a complete defense for Bilbrey, his use of force had to
be reasonable. She also understood imperfect self-defense—for example, if the jury
believed Bilbrey had used excessive, rather than reasonable, force to defend himself—
would not apply to the charge of aggravated mayhem against Bilbrey. Petty was aware
that multiple witnesses described Bilbrey as the aggressor in the fight.
Petty explained to Bilbrey that if they introduced evidence of the victim’s
propensity for violence, then Evidence Code section 1103 would allow Bilbrey’s own
propensity for violence to be introduced into evidence. To that end, she asked Bilbrey
whether he’d been involved in any fights, including whether he’d used the knife he
carried in any “confrontational situation.” Bilbrey told her he had never used the knife in
such a manner.
b. Investigation of Bilbrey’s Criminal History
Petty followed her usual practice of requesting information on her client’s criminal
background only from the prosecution. She did not independently seek information on
Bilbrey’s criminal history, because she had no reason to believe the history she received
from the prosecuting attorney was inaccurate or incorrect. Petty explained that she did
not request Bilbrey’s rap sheet prior to trial because, at that time, courts prohibited
prosecutors from providing a defendant’s rap sheet to defense counsel. Instead, Petty
17
explained, “prosecutors have an independent duty to summarize that information and give
you a summary of it.”
Petty did not receive a copy of Bilbrey’s criminal history until “the middle of
trial.” When she received the history, it contained “some pretty big surprises,” including
a police report describing the El Cerrito incident from the week before the Tomada
stabbing. Petty could not recall, however, whether it was the first time she had heard of
the El Cerrito incident. She did not recall Bilbrey having obtained a copy of the relevant
police report shortly before trial and could not recall the first time she saw it.
Petty moved to exclude the El Cerrito evidence because it undermined the defense
case and would adversely affect Bilbrey’s testimony, which had not yet been presented.
She told the trial court, had she known of the incident earlier, she might have selected a
different defense for Bilbrey. In addition, Petty had stated in her opening argument that
Bilbrey had “no prior arrest record” and did not “have a history of physically attacking
people.” She believed that statement was true when she said it, having understood that
Bilbrey had had no prior contact with law enforcement. Her understanding was based on
conversations with Bilbrey and the summary of Bilbrey’s criminal history provided by
the prosecution prior to trial.
c. Mental State Defenses
Petty was concerned about presenting multiple defenses for Bilbrey, in particular
believing “that a mental defense would completely eviscerate a self-defense” and that the
two defenses “were absolutely diametrically opposed.” As one reason for the
incompatibility, Petty believed anything that affected Bilbrey’s ability to recall the events
of the fight could be used to challenge his credibility as a self-defense witness. Based on
her experience handling “thousands of DUI cases,” Petty believed that the effects on the
human brain at Bilbrey’s level of intoxication were “inconsistent with being able to
develop the mindset required for self-defense.” Petty was also concerned the jury would
hear evidence of other attributes associated with such high intoxication, including
“increased aggression and decreased self-control, also decreased motor control,” which
“are all inconsistent with saying I knew what I was doing, I did what I had to because I
18
was under very serious attack.” As such, Petty believed a defense premised on Bilbrey’s
severe intoxication would have eviscerated what she believed to be the strongest defense.
Petty was also aware that Bilbrey had suffered a concussion, possibly before
stabbing Tomada. But she concluded there was no need for expert testimony on the
effect of such a traumatic brain injury on Bilbrey’s mental state, because there was
nothing upon which such an expert could opine: “It would have been completely
speculative.”
Petty also knew Bilbrey had been diagnosed with CMT, but she did not consult
with an expert about what impact the disease may have had upon Bilbrey’s motor
coordination because she “didn’t need to” and had “sufficient information to determine
that that was not a good idea to focus on.” Bilbrey had given her no indication he
suffered from symptoms of the disease.
Overall, Petty believed the evidence did not support consulting an expert on the
combined effects of Bilbrey’s intoxication, concussion, or CMT on his ability to form
specific intent “because there weren’t individual effects of two of those three” and,
therefore, no combined effects. In addition, she believed any focus on Bilbrey’s
diminished capacity would have been inconsistent with the facts and the defense of self-
defense.
Despite her concerns, Petty acknowledged that she ultimately asked the jury to
consider the effect of Bilbrey’s intoxication on his mental state because “there were some
facts that we just could not get away from.” She also acknowledged that a person with
Bilbrey’s blood alcohol content would have difficulty intentionally inflicting the wounds
Tomada sustained. In her closing argument, Petty argued the significance of Bilbrey’s
intoxication and head injury to his ability to form specific intent to kill or maim Tomada,
acknowledging that this amounted to a mental state defense.
C. Trial Court’s Ruling
In a written order, the trial court granted Bilbrey’s habeas petition, finding that he
received ineffective assistance from defense counsel. The court concluded defense
counsel’s failure to investigate possible mental defenses—based on evidence of Bilbrey’s
19
blood alcohol content, concussion, and CMT—fell outside the range of competence
demanded of attorneys in criminal cases. The court found that counsel’s failure to
investigate was not excused by any knowledge gained from her experience as a criminal
defense attorney, any opposition by Bilbrey to presenting a mental state defense, or by
the possible conflict between a mental state defense and self-defense.
In addition, the court found counsel’s failure to investigate was not excused by her
belief that self-defense was a strong, complete defense. Also, the court noted as an
unreasonable tactical decision counsel’s rejection of a mistrial after disclosure of the El
Cerrito incident, which prejudiced Bilbrey’s claim of self-defense and belied counsel’s
claim in opening argument that Bilbrey had no history of physically attacking people.
The court also concluded counsel’s failure to investigate was not excused by
defense counsel’s “general, unspecific, and unsupported” theory that local juries would
not be receptive to a mental state defense.
The court found defense counsel’s deficient performance prejudiced Bilbrey. The
court explained that Greene’s testimony about the individual and combined effects of
Bilbrey’s blood alcohol content, CMT, and traumatic brain injury suggested “that a
mental state defense would not necessarily have been inconsistent with the self-defense
defense and, if it had been investigated and presented, the outcome of the trial would
have been different.”
The court thus granted Bilbrey’s petition for writ of habeas corpus and concluded
“[p]etitioner is entitled to a new trial.” Pursuant to section 1506, the People filed a timely
notice of appeal on January 5, 2017.
III.
Speedy Trial Motion and Dismissal
In March 2017, after the People noticed their appeal from the order granting
Bilbrey habeas relief and a new trial, Bilbrey moved to dismiss the information for
violation of his right to a speedy trial under section 1382. Bilbrey argued the statute
required dismissal because he had not been brought to trial within 60 days of the
November 21, 2016 habeas order. Bilbrey contended the trial court retained jurisdiction
20
to rule on the motion under section 1506, which, he argued, required the People to seek a
stay of the habeas order pending resolution of their appeal.
The People opposed the motion, arguing their pending habeas appeal divested the
trial court of jurisdiction to rule on the motion. In the alternative, they argued in passing
that their pending appeal constituted good cause for the delay in retrying Bilbrey.
The trial court heard Bilbrey’s motion on March 22, 2017. The court found that
the order granting Bilbrey habeas relief had been served on the relevant parties
November 21, 2016, and that the People had 60 days thereafter to bring Bilbrey to trial.
The court granted the motion, accepting Bilbrey’s argument that, absent a stay under
section 1506 or Bilbrey waiving time, he was entitled to dismissal under section 1382.
Two days later, the People filed a petition for writ of mandate, asking us to direct
the trial court to vacate its dismissal order. We construed the petition as one for a writ of
supersedeas and granted it, staying the dismissal order pending resolution of the People’s
appeal in case no. A150273.7
DISCUSSION
On appeal, the People contend the trial court erred by granting Bilbrey’s petition
for writ of habeas corpus and by granting his motion to dismiss.
I.
A150273. Trial Counsel Was Ineffective, and the Trial Court Properly Granted
Bilbrey’s Petition for Writ of Habeas Corpus.
A. Standard of Review
“[W]e review the grant of a writ of habeas corpus by applying the substantial
evidence test to pure questions of fact and de novo review to questions of law.” (In re
Taylor (2015) 60 Cal.4th 1019, 1035.)
“Whether trial counsel performed competently, that is, ‘reasonabl[y] under
prevailing professional norms’ (Strickland, supra, 466 U.S. at p. 688), presents a mixed
7
On our own motion, we take judicial notice of the record in People v. Superior
Court (Bilbrey) (May 2, 2017, No. A150861), pursuant to Evidence Code section 452,
subdivision (d).
21
question of fact and law. Such questions are ‘generally subject to independent review as
predominantly questions of law—especially so when constitutional rights are
implicated’—and ‘include the ultimate issue, whether assistance was ineffective, and its
components, whether counsel’s performance was inadequate and whether such
inadequacy prejudiced the defense.’ (People v. Ledesma (1987) 43 Cal.3d 171, 219
[Ledesma].)” (In re Resendiz (2001) 25 Cal.4th 230, 248–249, overruled on another
ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370–371.)
“ ‘[W]e give great weight to those of the referee’s findings that are supported by
substantial evidence. [Citations.] This is especially true for findings involving credibility
determinations. The central reason for referring a habeas corpus claim for an evidentiary
hearing is to obtain credibility determinations [citation]; consequently, we give special
deference to the referee on factual questions “requiring resolution of testimonial conflicts
and assessment of witnesses’ credibility, because the referee has the opportunity to
observe the witnesses’ demeanor and manner of testifying.” ’ ” (In re Lawley (2008)
42 Cal.4th 1231, 1241, quoting In re Thomas (2006) 37 Cal.4th 1249, 1256.)
B. Ineffective Assistance Claims
To prevail on a claim of ineffective assistance of counsel, petitioner “must show
that his attorney’s ‘representation fell below an objective standard of reasonableness’
‘under prevailing professional norms’ ([Strickland], supra, 466 U.S. at p. 688]; In re
Hardy (2007) 41 Cal.4th 977, 1018) and ‘that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome’ ([Strickland], at p. 694).” (In re Valdez (2010) 49 Cal.4th 715, 729.)
“The burden of proof that the defendant must meet in order to establish his
entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.”
(Ledesma, supra, 43 Cal.3d at p. 218.)
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
22
has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. [Citation.] A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action “might be
considered sound trial strategy.” [Citation.]’ ([Strickland], supra, 466 U.S. at p. 689.)”
(In re Valdez, supra, 49 Cal.4th at pp. 729–730.)
But “deferential scrutiny of counsel’s performance is limited in extent and indeed
in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ [citation];
it must never be used to insulate counsel’s performance from meaningful scrutiny and
thereby automatically validate challenged acts or omissions. Otherwise, the
constitutional right to the effective assistance of counsel would be reduced to form
without substance.” (Ledesma, supra, 43 Cal.3d at p. 217.)
1. Counsel’s Duty to Investigate
Here, the trial court accepted Bilbrey’s argument that defense counsel was
ineffective for failure to investigate Bilbrey’s possible mental state defenses.
“ ‘It is counsel’s duty to investigate carefully all defenses of fact and of law that
may be available to the defendant, and if [his or her] failure to do so results in
withdrawing a crucial defense from the case, the defendant has not had the assistance to
which he was entitled.’ ” (In re Williams (1969) 1 Cal.3d 168, 175, quoting People v.
Ibarra (1963) 60 Cal.2d 460, 464, abrogated on other grounds by People v. Pope (1979)
23 Cal.3d 412, 427.)
“ ‘[B]efore counsel undertakes to act, or not to act, counsel must make a rational
and informed decision on strategy and tactics founded upon adequate investigation and
preparation.’ [Citations.] ‘ “[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable; and strategic choices
23
made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.” ’ ”
(In re Thomas, supra, 37 Cal.4th at p. 1258.)
“To establish that investigative omissions were constitutionally ineffective
assistance, defendant must show at the outset that ‘counsel knew or should have known’
further investigation might turn up materially favorable evidence.” (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1244, superseded on other grounds by statute as stated in People
v. Centeno (2014) 60 Cal.4th 659, 676.) A possible conflict between defenses does not
excuse counsel’s failure to investigate the potential strengths of a “mental defense.”
(Mozingo, supra, 34 Cal.3d at p. 934.) By inaction, deliberate or otherwise, counsel may
deprive him- or herself of “ ‘the reasonable bases upon which to reach informed tactical
and strategic trial decisions.’ ” (Ibid., quoting People v. Frierson (1979) 25 Cal.3d 142,
163.) Similarly, a client’s initial opposition does not “excuse counsel from undertaking
sufficient investigation of possible defenses to enable counsel to present an informed
report and recommendation” to the client. (Ibid.)
2. Analysis
a. Deficient Performance
“To support a defense of ‘diminished actuality,’ a defendant presents evidence of
voluntary intoxication or mental condition to show he ‘actually’ lacked the mental states
required for the crime.” (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3.)
In an appropriate case, to render competent assistance, the duty to investigate
includes “the obtaining of a psychiatric investigation.” (People v. Frierson, supra,
25 Cal.3d at pp. 160–161.) The decision not to raise a mental defense, “wholly without
the benefit of medical opinion in the matter and with full knowledge that medical reports
24
were in existence,” can constitute ineffective assistance of counsel. (In re Saunders
(1970) 2 Cal.3d 1033, 1048–1049.)
The evidence Bilbrey presented at the hearing on his petition for writ of habeas
corpus reflects that defense counsel knew of Bilbrey’s mental conditions—his high level
of intoxication and concussion during the incident, and his pre-existing CMT—prior to
trial. Counsel knew an expert could have testified that Bilbrey’s high intoxication would
have made it difficult for him to intentionally inflict the wounds on Tomada and that such
evidence would have been useful for the jury to hear in evaluating whether Bilbrey had
the specific intent to maim or kill Tomada. She also knew that a traumatic brain injury
“could cause someone to lose their ability to understand what’s going on around them”
and affect their “orientation in space” and “motor coordination.” Counsel even addressed
these two aspects of Bilbrey’s mental state in her opening statement, contending that each
negatively impacted Bilbrey’s memory of the incident. Thus, the evidence shows defense
counsel knew or should have known that further investigation of these conditions would
have revealed material evidence favorable to a mental state defense.
Defense counsel did not dispute that she did not consult with experts concerning
the effects these conditions might have had on Bilbrey’s mental state during the incident.
Counsel believed she “knew enough about the effects on the brain of intoxication” that
she did not need to consult with anyone about them. She also believed it unnecessary to
consult with an expert on the impact of Bilbrey’s concussion, because she “would have
been asking a neurologist . . . to completely speculate.” As to Bilbrey’s CMT, counsel
concluded she had sufficient information from Bilbrey himself, that he was not suffering
any symptoms of the condition, that she did not need to consider it further in determining
his defense. Overall, Petty believed she knew enough about Bilbrey’s mental conditions
not to pursue them as bases for a mental state defense for Bilbrey.
As such, defense counsel rejected a mental state defense for Bilbrey in favor of
self-defense without further investigation or information. In fact, counsel implied that
she selected Bilbrey’s defense before fully investigating alternatives when she
acknowledged, “If I had decided to pursue [a mental state] defense, I might very well
25
have asked the doctor, ‘Hey, if you were to testify, what would you talk about?” The law
requires the reverse approach, however. Counsel must ask such questions before
deciding on a defense, not after, to ensure that the accused receives effective assistance in
a criminal trial.
Bilbrey’s habeas evidence indicated what sort of mental state defense further
investigation would have yielded. By calling Greene, Bilbrey demonstrated the value of
consulting with an expert witness who had personally evaluated Bilbrey and reviewed his
medical records. Greene not only confirmed the existence of Bilbrey’s medical
conditions, but described the deleterious effects of each condition upon his motor skills,
coordination, perception and judgment. He opined that a person suffering from the
cumulative effects of all three conditions would experience significant “psychomotor
impairment,” such that the person would have difficulty wielding a knife with the
accuracy needed to intentionally inflict the type of stab wounds suffered by Tomada.
This was material evidence favorable to Bilbrey on the two most serious charges against
him, for aggravated mayhem and attempted murder.
Similarly, the brief testimony from two of Bilbrey’s sisters showed what favorable
information counsel could have obtained from Bilbrey’s family members. Both sisters
are familiar with the family history of CMT, and one suffers from CMT herself. Both
sisters also indicated Bilbrey experienced significant symptoms affecting his strength and
motor skills around the time of the incident and continued to suffer from such symptoms
thereafter.
Perhaps most importantly, Greene undercut defense counsel’s stated belief that
any mental state defense would be “diametrically opposed” to her chosen theory that
Bilbrey had acted in self-defense. Indeed, we agree with the trial court that Greene’s
testimony suggested the two defenses would not necessarily have been inconsistent if
both had been adequately investigated and presented. For example, Greene testified that
an intoxicated person who has not “blacked out” can still recall in detail events that
occurred while they were intoxicated. This suggests, contrary to Petty’s stated
understanding, that Bilbrey’s intoxication would not have prevented him from being a
26
credible self-defense witness. Similarly, Strickland expert Burt suggested that counsel
faced with evidence supporting multiple, potentially contradictory defenses, is obligated
to investigate them all and do more to reconcile them for the client’s benefit, such as
presenting expert testimony.
The trial court heard directly from these witnesses and implicitly found the
evidence in support of Bilbrey’s ineffective assistance of counsel claim credible, and we
may not revisit that determination on appeal. (In re Lawley, supra, 42 Cal.4th at
p. 1241.)
Under these circumstances, we conclude defense counsel’s failure to investigate
impermissibly withdrew a crucial defense from the case and the jury’s consideration.
Facts known to counsel, before trial, required further investigation before she rejected a
mental state defense for Bilbrey. Counsel’s obligation existed independently of her own
experience and knowledge or the other excuses she proffered in opposing the writ of
habeas corpus. Because the record reflects counsel rejected a mental state defense for
Bilbrey without such investigation, including soliciting medical or other expert opinion in
the matter, counsel’s performance was objectively unreasonable under prevailing
professional norms and, therefore, deficient.8
b. Prejudice
We agree with the trial court’s conclusion that defense counsel’s deficient
8
Because we conclude counsel was ineffective on this ground, we need not
address whether counsel’s investigation of, and decision to proceed on, a theory of self-
defense was also ineffective assistance. We interpret the trial court’s order granting the
writ of habeas corpus as holding only that counsel was ineffective in failing to investigate
and present a mental state defense. Other findings made by the trial court in its order—
such as that defense counsel did not adequately investigate Bilbrey’s self-defense theory
and unreasonably declined to accept a mistrial after the admission of evidence damaging
to that defense—only supported its conclusion that failure to investigate a mental state
defense was unreasonable by demonstrating the weaknesses in defense counsel’s choice.
These findings were not independent bases for the ineffectiveness finding. We note,
though, that on the more limited record in Bilbrey’s direct appeal, we declined to find
counsel ineffective for withdrawing the request for a mistrial. (People v. Bilbrey
(May 14, 2013, A129236) [nonpub. opn.].)
27
performance prejudiced Bilbrey such that, but for counsel’s errors, it is reasonably
probable the result at trial would have been different.
First, counsel’s failure to investigate deprived her and Bilbrey of the ability to
make an informed choice about what defense or defenses to present on Bilbrey’s behalf.
(See Mozingo, supra, 34 Cal.3d at p. 934.) The duty of counsel to investigate is not an
end in itself. Rather, fulfilment of that duty ensures that counsel’s strategic and tactical
decisions are reasonably informed by the circumstances of the case. Without a
reasonable investigation by counsel of Bilbrey’s mental state defense, we cannot
conclude that counsel’s choice to rely solely on a self-defense theory was informed or
reasonable.
Second, counsel’s deficient performance deprived the jury of the opportunity to
consider whether the prosecution had proven beyond a reasonable doubt that Bilbrey had
the specific intent required to convict him of the two most serious charges: aggravated
mayhem and attempted murder. Had counsel presented a mental state defense as
previewed at the habeas hearing, Bilbrey would have been entitled to have the jury
instructed pursuant to CALCRIM No. 3428. That instruction would have informed the
jury that it could consider evidence showing Bilbrey suffered from a mental disease,
defect, or disorder for “the limited purpose of deciding whether, at the time of the
charged crime, [Bilbrey] acted [or failed to act] with the intent or mental state required
for that crime.” The instruction would have also informed the jury that “[t]he People
have the burden of proving beyond a reasonable doubt that [Bilbrey] acted [or failed to
act] with the required mental state.” (CALCRIM No. 3428.) Had defense counsel
presented evidence in support of this instruction and requested it, the court would have
been required to so instruct the jury and the jury would have been required to consider it.
(People v. Saille (1991) 54 Cal.3d 1103, 1119.)
The People maintain that the evidence of Bilbrey’s specific intent to maim and/or
kill Tomada was so overwhelming that the jury could not have entertained a reasonable
doubt as to that element of the aggravated mayhem and attempted murder charges. This
court agreed on direct appeal that substantial evidence supported the intent elements of
28
those offenses. (People v. Bilbrey (May 14, 2013, A129236) [nonpub. opn.].) We found
substantial evidence of Bilbrey’s specific intent to maim in evidence that he had
remained uninvolved in the fight until he “had an opportunity to decide if, how, and
where he would strike Tomada.” (Ibid.) When he did strike Tomada, we found, the jury
could have concluded “that Bilbrey’s actions were controlled and directed” rather than
“indiscriminate.” (Ibid.)
But the evidence of Bilbrey’s specific intent to maim or kill is substantial only if it
can be inferred that his actions reflected his true intent. Absent the ability to consider any
evidence that Bilbrey, at the time of the incident, was suffering from a mental condition
that affected his motor skills, perception, and ability to form specific intent, the only
reasonable inference available to the jury was that Bilbrey’s intent was congruent with
the result. Counsel’s deficient performance deprived the jury of the chance to consider
other evidence.
The People dispute this notion, noting that Bilbrey’s defense counsel requested
and received a jury instruction on the mental state defense of involuntary intoxication,
which the jury considered and rejected. But, aside from the fact that Bilbrey’s blood
alcohol content was at or above 0.2% at the time of the fight, the record reflects the
defense presented no evidence explaining why such intoxication might have precluded
Bilbrey’s specific intent. In addition, the record reflects defense counsel made the jury
aware of Bilbrey’s other mental conditions, but only in passing and, similarly, without the
benefit of expert opinion addressing the effect of those conditions, individually or
collectively, on Bilbrey’s mental state. As such, the jury was left to determine on its own
the effect of Bilbrey’s conditions, individually and in combination, on his mental state.
Under these circumstances, we conclude there is a reasonable probability that
Bilbrey would have achieved a more favorable result if counsel had investigated and
presented a diminished actuality defense. Had the jury been asked to consider such a
defense and, as the trial court did in granting habeas relief, found it credible, jurors
reasonably could have questioned Bilbrey’s specific intent to maim or kill Tomada. Had
just one of those jurors concluded there was a reasonable doubt that Bilbrey had the
29
required specific intent to maim or kill, the jury could have found Bilbrey not guilty of
aggravated mayhem and/or attempted murder and found him guilty only of violating the
lesser included offenses of mayhem and/or attempted voluntary manslaughter. Then,
rather than the lengthy sentences imposed on the greater offenses—life with the
possibility of parole and 11 years, respectively, for aggravated mayhem and attempted
murder—Bilbrey’s punishment for convictions under the lesser included charges would
have been a determinate term of no more than eight years in prison. (Pen. Code,
§§ 203/204 and 193/664.)
For these reasons, we conclude defense counsel’s deficient performance
prejudiced Bilbrey and warranted granting his petition for writ of habeas corpus on the
basis of ineffective assistance of counsel.
II.
A151401. The Trial Court Retained Jurisdiction to Rule on Bilbrey’s Motion to
Dismiss, and the People Have Not Shown the Trial Court Abused its Discretion by
Granting the Motion.
The People also appeal from the trial court’s order granting Bilbrey’s post-habeas
motion to dismiss for violation of his right to a speedy trial under section 1382. They
argue their appeal in case No. A150273 divested the trial court of jurisdiction to rule on
Bilbrey’s motion to dismiss because the motion was a “matter related to, embraced by, or
affected by” the appeal from the habeas order granting Bilbrey a new trial. They also
argue section 1506 of the Penal Code, which authorizes their appeal from the habeas
order, did not require them to seek a stay of the order pending their appeal because “the
trial court effectively ordered him discharged or released.” As to the merits of the
dismissal order, the People maintain dismissal was improper both because an appealed
habeas order is not final and because the pending appeal constituted good cause to delay
Bilbrey’s retrial beyond the 60-day deadline.
In response, Bilbrey contends the trial court retained jurisdiction to rule on his
motion to dismiss because the People failed to seek a stay of the habeas order as required
by section 1506. The People were required to request a stay under that statute, Bilbrey
30
argues, because the habeas order granted him “ ‘relief other than a discharge or release
from custody.’ ” On the merits, Bilbrey argues dismissal was required because his retrial
did not begin within 60 days of the November 21, 2016 habeas order as required by
section 1382, and he notes the absence of authority indicating that a pending appeal, by
itself, constitutes good cause to delay trial beyond the statutory deadline.
The parties do not dispute that Bilbrey has remained in custody pending the
People’s appeal from the habeas order granting him a new trial.
A. The Trial Court Retained Jurisdiction to Rule on the Motion to Dismiss
We review de novo the People’s claim that the trial court lacked jurisdiction to
grant Bilbrey’s section 1382 motion. (See Day v. Collingwood (2006)
144 Cal.App.4th 1116, 1123 [applying de novo standard of review in determining
whether trial court had jurisdiction to rule on post-judgment sanctions motion].)
Questions of statutory interpretation are also reviewed de novo. (John v. Superior Court
(2016) 63 Cal.4th 91, 95.)
31
1. Analysis
“The general rule is that ‘ “ ‘[t]he filing of a valid notice of appeal vests
jurisdiction of the cause in the appellate court until determination of the appeal and
issuance of the remittitur’ [citation], thereby divesting the trial court of jurisdiction over
anything affecting the judgment. [Citations.]” ’ ” (People v. Tulare County Superior
Court (Gregory) (2005) 129 Cal.App.4th 324, 329 (Gregory), quoting People v. Flores
(2003) 30 Cal.4th 1059, 1064 (Flores).) The purpose of this common law rule “ ‘ “is to
protect the appellate court’s jurisdiction by preserving the status quo until the appeal is
decided. The rule prevents the trial court from rendering an appeal futile by altering the
appealed judgment . . . by conducting other proceedings that may affect it.” ’ ” (Gregory,
at p. 329, quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089.) This rule
applies where habeas corpus proceedings are concerned.9 (Ibid.)
“Jurisdiction survives, however, where provided by statute.” (Flores, supra,30 Cal.4th at p. 1064.) “In such cases, the jurisdictional period generally is not tolled
during the pendency of an appeal.” (Ibid.) “The prosecution’s right to appeal in a
criminal case is strictly limited by statute.” (People v. Chacon (2007) 40 Cal.4th 558,
564.) “Long standing authority requires adherence to these limits even though ‘the
9
The parties devote substantial briefing to section 916, subdivision (a), a section
of the Code of Civil Procedure that sets forth the same general rule for civil cases. The
parties assume without discussion that section 916, subdivision (a) governs jurisdiction in
criminal proceedings. That section is contained in part 2 of the Code, which is entitled
“Of Civil Actions,” and in title 13 of that part, which is entitled “Appeals in Civil
Actions,” suggesting it is inapplicable in criminal proceedings. (See People v. Superior
Court (Laff) (2001) 25 Cal.4th 703, 727–732 [holding Code Civ. Proc. § 639, also
contained in part 2, applies only in civil matters].) “[I]t is well established that ‘ “chapter
and section headings [of an act] may properly be considered in determining legislative
intent” [citation], and are entitled to considerable weight.’ ” (People v. Hull (1991)
1 Cal.4th 266, 272, quoting American Federation of Teachers v. Board of Education
(1980) 107 Cal.App.3d 829, 836.) The comparable common law rule that has been
applied in criminal proceedings is generally the same except that the cases applying that
rule recognize that the Legislature may create exceptions by statute.
32
People may thereby suffer a wrong without a remedy.’ ” (Ibid., quoting People v.
Superior Court (Howard) (1968) 69 Cal.2d 491, 499.)
In the criminal context, the Legislature has enacted statutes specifically addressing
the effect of a pending appeal on proceedings in the trial court. These statutes prescribe
the effects of both direct appeals and habeas appeals. One statute concerning direct
appeals is section 1242, enacted in 1874.10 Section 1242 reads, “An appeal taken by the
people in no case stays or affects the operation of a judgment in favor of the defendant,
until judgment is reversed.” (§ 1242.) Similarly, section 1243 states that an appeal from
a judgment of conviction (other than where a death sentence has been imposed) “does not
stay the execution of the judgment or order granting probation . . . unless the trial court
shall so order.” (§ 1243.) “The granting or refusal of such an order,” section 1243
continues, “shall rest in the discretion of the court.” (Ibid.) We read these statutes as
effectively providing the prevailing party with the benefit of their success in the trial
court pending resolution of any appeal, subject, in the case of appeals governed by
section 1243, to the court’s discretion to stay its enforcement.
Section 1506 functions similarly in the context of proceedings on petitions for a
writ of habeas corpus. Section 150611 specifically authorizes and governs the People’s
10
We believe section 1235, et seq. applies in the context of only direct criminal
appeals. The fact that section 1235, et seq., appears under title 9, chapter 2 of part 2 of
the Penal Code—titled “Appeals in Felony Cases”—supports an inference that those
sections apply only in direct appeals from criminal judgments and orders. Similarly, the
fact that section 1506 appears under title 12, chapter 1 of part 2—titled “Of the Writ of
Habeas Corpus”—supports an inference that section 1506 applies only to appeals in
habeas proceedings. (See People v. Hull, supra, 1 Cal.4th at p. 272.) Thus, though we
find section 1242 provides interpretive context for the question before us, we conclude it
does not apply to this habeas appeal.
11
In full, section 1506 reads, “An appeal may be taken to the court of appeal by
the people from a final order of a superior court made upon the return of a writ of habeas
corpus discharging a defendant or otherwise granting all or any part of the relief sought,
in all criminal cases, excepting criminal cases where judgment of death has been
rendered, and in such cases to the Supreme Court; and in all criminal cases where an
application for a writ of habeas corpus has been heard and determined in a court of
appeal, either the defendant or the people may apply for a hearing in the Supreme Court.
33
appeal from a superior court’s order upon the return of a writ of habeas corpus. In fact,
“the whole purpose of section 1506 was to make orders of the superior court on habeas
corpus reviewable.” (People v. Huff (1975) 46 Cal.App.3d 361, 364 (Huff).) That is,
prior to enactment of the statute in 1927, the People had no right to appeal from an order
made upon the return of a writ of habeas corpus and were “very greatly handicapped by
having no redress where a defendant is improperly released on habeas corpus.” (Rep. of
the Comm. for the Reform of Crim. Proc. (1927) p. 29.)
Until 1957, section 1506 stated that an appeal could be taken “by the people from
a final order of a superior court made upon the return of a writ of habeas corpus
discharging a defendant after his conviction, in all criminal cases” with certain
exceptions.12 The statute contained language similar to that it currently contains
Such appeal shall be taken and such application for hearing in the Supreme Court shall be
made in accordance with rules to be laid down by the Judicial Council. If the people
appeal from an order granting the discharge or release of the defendant, or petition for
hearing in either the court of appeal or the Supreme Court, the defendant shall be
admitted to bail or released on his own recognizance or any other conditions which the
court deems just and reasonable, subject to the same limitations, terms, and conditions
which are applicable to, or may be imposed upon, a defendant who is awaiting trial. If
the order grants relief other than a discharge or release from custody, the trial court or the
court in which the appeal or petition for hearing is pending may, upon application by the
people, in its discretion, and upon such conditions as it deems just stay the execution of
the order pending final determination of the matter.”
12
As originally enacted in 1927, section 1506 read: “An appeal may be taken to
the district court of appeal by the people from a final order of a superior court made upon
the return of a writ of habeas corpus discharging a defendant after his conviction, in all
criminal cases prosecuted by indictment or information in a court of record, excepting
criminal cases where judgment of death has been rendered, and in such cases to the
supreme court; and in all criminal cases prosecuted by indictment or information in a
court of record, where upon appeal or original application after conviction of the
defendant an application for a writ of habeas corpus has been heard and determined in a
district court of appeal, either the defendant or the people may apply for a hearing in the
supreme court. Such appeal shall be taken and such application for hearing in the
supreme court shall be made in accordance with rules to be laid down by the judicial
council. If the people appeal, or petition for hearing in either the district court of appeal
or the supreme court, the defendant shall not, in any case in which the judgment of
conviction has become final, be discharged from custody pending final decision upon the
34
providing that if the people appeal, the defendant may be admitted to bail pending appeal.
In 1957, however, the Legislature added the final sentence addressing an appeal from a
habeas order that “grants relief other than a discharge or release from custody.” (See
Stats. 1957, ch. 1561, § 1.) The report of the Legislative Counsel on the 1957
amendment stated that it “Grants to the people the right to appeal from a final order of a
superior court granting all or any part of the relief sought in a habeas corpus proceeding,
rather than only from an order discharging defendant” and “Provides that if the order
grants relief other than a discharge from custody, the trial court or court in which the
appeal or petition for hearing is pending may, upon application by the people, in its
discretion, and upon such conditions as it deems just, stay the execution of the order
pending final determination of the matter.” (Legis. Counsel Rep. on Sen. Bill No. 439
(1957 Reg. Sess.).)
Prior to the 1957 amendment, the issue had arisen whether the People could
“appeal from an order on habeas corpus which directs that a petitioner be granted relief
but which does not order his release from custody.” (In re Chessman (1955)
44 Cal.2d 1, 4.) In Chessman, the petitioner argued they could not, claiming the term
“discharge” as used in section 1506 did not include relief “short of effecting their release
from illegal custody.” (Chessman, at p. 5.) The court interpreted “discharge” broadly to
encompass not only discharge from imprisonment or restraint but also discharge “from
illegal conditions of restraint although not from all restraint.” (Id. at p. 6.) Nonetheless,
apparently recognizing the statutory reference to “discharge” was ambiguous, the State
Bar proposed the 1957 amendment to “clarify the law” by adding language allowing the
People to appeal from an order “granting any relief sought in a petition for writ of habeas
corpus even though the defendant is not discharged from custody.” (32 Journal of the
State Bar of California (Jan.–Feb. 1957) 1957 Legislative Program, pp. 21–22.) The
appeal or petition for hearing and he must, in such cases, be retaken into custody if he has
been discharged; provided, however, that in bailable cases the defendant may be admitted
to bail, in the discretion of the judge, pending decision of the appeal or petition for
hearing.” (See Stats. 1927, ch. 628, § 1, italics added.)
35
State Bar explained that the statute was amended to codify the decision in Chessman.
(Fourth Progress Rep. to the Legis. by the Sen. Interim Judiciary Com., Rep. on Sen. Bill
No. 439 (1957 Reg. Sess.) p. 354.)
More fundamentally here, section 1506 also now distinguishes between the effects
of the People’s appeal from a habeas order granting release or discharge and their appeal
from an order granting “other” relief. Notably, in both situations and as with
sections 1242 and 1243 in the context of direct appeals, section 1506 allows the
prevailing habeas petitioner to enjoy the benefits of a favorable trial court disposition
during the pendency of the appeal, subject to certain limitations. Specific to our purpose
here, on appeal from such an order that “grants relief other than a discharge or release
from custody” the trial or appellate court may, “upon application by the people, in its
discretion, and upon such conditions as it deems just, stay the execution of the order
pending final determination of the matter.” (§ 1506.) Thus, a defendant who is granted
partial relief—something short of release or discharge—may benefit from execution of
the favorable order pending the People’s appeal unless the trial or appellate court
exercises its discretion to grant a stay requested by the People. The question before us is
what effect the People’s appeal has on execution of the order granting habeas relief if, as
here, the People do not request and receive a stay.
The parties cite no authority previously interpreting or applying the stay provision
of section 1506, and our research discloses none that squarely answers the question
before us. As noted by the People at oral argument, some courts have referred to
section 1506 in the limited context of noting, mostly impliedly, that certain forms of
habeas relief constitute relief “other than release or discharge” and are, therefore, eligible
for a stay pending appeal under section 1506. (See In re Stinnette (1979) 94 Cal.App.3d
800 [habeas order effectively releasing respondent on parole]; In re Brindle (1979)
91 Cal.App.3d 660 [order granting incarcerated persons access to public defenders]; In re
Fain (1976) 65 Cal.App.3d 376 [order granting determination of prison term]; and In re
Muszalski (1975) 52 Cal.App.3d 475 [order granting inspection of confidential
documents in Department of Corrections file].) One such case involved the People’s
36
appeal from a habeas order granting petitioner a new trial. (In re Rhymes (1985)
170 Cal.App.3d 1100, 1103.) There, without explaining the circumstances, the court
noted that “[t]he superior court ordered that petitioner continue to remain free on her own
recognizance” and that, “[p]ending the resolution of the instant appeal, the court below
stayed the retrial of petitioner.” (Ibid.) Still, no court has expressly attempted to answer
the question whether, absent a stay, the People’s appeal from an order granting relief
other than a discharge or release on habeas corpus automatically stays the order such that
no stay is required.13
One of the few cases otherwise interpreting section 1506 since its 1957 revision is
Huff, supra, 46 Cal.App.3d 361. In Huff, the court permitted the People to proceed with
their appeal from a habeas order reducing the defendant’s sentence due to defects in
obtaining his prior convictions. (Id. at p. 363.) Upon granting relief, the trial court had
released the defendant, but the appellate court termed this only “partial relief” and
determined that the part of section 1506 requiring a defendant in such a case to be
returned to custody if the People appeal did not apply. (Id. at p. 365.)
The People appealed, “but made no application for a stay of the order.
(Pen. Code, § 1506.)” (Huff, supra, 46 Cal.App.3d at pp. 363–364.) Huff moved to
dismiss the appeal “on the ground that Penal Code section 1506 applies to this appeal and
that the People had not complied with said section because of the People’s failure to
request a stay of the court’s order.” (Id. at p. 364.) The People opposed, in part arguing
that section 1506 did not require them to apply for a stay before proceeding with their
appeal. (Ibid.) The court held section 1506 does not require the People to apply for and
13
The parties rely in their briefs on Gregory, supra, 129 Cal.App.4th 324, and we
asked them to focus at oral argument on its impact on this case. Gregory does not answer
the question before us, however. There, the court considered what effect a pending
habeas appeal had on the trial court’s jurisdiction to act in the same habeas proceeding.
(Gregory, at p. 332.) The court was not required, as are we, to decide the impact of a
pending habeas appeal on the trial court’s jurisdiction to act in the underlying prosecution
itself. Therefore, though we acknowledge that Gregory’s holding is in tension with our
own, we conclude it is largely inapposite here.
37
receive a stay “as a prerequisite to preserving the right to appeal under [section] 1506.”
(Ibid.)
After quoting most of section 1506, including the stay provision, the court
explained more generally, “The effect of section 1506 may be illustrated as follows: (1)
if an appeal is not taken an order becomes final when the time for appeal has passed
[citation]; (2) if an appeal is taken, and a request for a stay of the order is made and
granted, then the order is stayed pending appeal (Pen. Code, § 1506); and (3) if an appeal
is taken and a request for stay is denied or no request for stay is made, then the appeal
has no effect on the order unless and until the order is reversed. [Citations.] At bench
the case falls into the latter category.” (Huff, supra, 46 Cal.App.3d at p. 365, italics
added.) The court then denied the motion to dismiss the appeal and proceeded to the
merits, affirming the habeas order. (Id. at pp. 364–367.)
Considering Huff and the foregoing statutory analysis, we interpret the operative
language of section 1506 to create an exception to the general jurisdiction rule set forth in
Flores. As such, absent a stay, the trial court has jurisdiction to execute a habeas order
despite the pendency of the people’s appeal from that order. If the trial court did not
otherwise have jurisdiction to act, there would be no need for the statute to provide for
the availability of a stay. Any argument that such a stay is not necessary to prevent the
trial court from proceeding would render meaningless the provision of section 1506
allowing the People to seek a stay and the court to grant one—running afoul of “one of
guiding principles of statutory construction, that significance be accorded every word of
an act.” (People v. Johnson (2002) 28 Cal.4th 240, 246–247.)
The People do not really argue otherwise. They concede in their opening brief
that the statute requires them to apply for a stay when a habeas order grants relief other
than discharge or release from custody.14 They contend, however, that the relief here was
14
Nor do they dispute that they did not seek a timely stay of the habeas order in
this case. The record reflects the People eventually sought a stay under section 1506.
But they did not do so until March 22, 2017, after the trial court granted Bilbrey’s
section 1382 motion to dismiss. Moreover, the People’s written motion sought a stay of
38
“effectively” a discharge or release from custody. We are not persuaded. The parties do
not dispute that the habeas order did not actually discharge or release Bilbrey from
custody. The argument that the order granting a new trial “effectively” discharged or
released Bilbrey rests on an interpretation of the statutory language that is not reasonable,
particularly given the Legislature’s amendment of section 1506 to distinguish between
discharge or release, on the one hand, and other types of relief, on the other. The
amendment, which retained the reference to “discharging a defendant” but added “or
otherwise granting all or any part of the relief sought” and the provision authorizing a
stay of an order “grant[ing] relief other than a discharge from custody,” indicates the
Legislature intended the word “discharge” in the amended statute to mean a discharge
from custody and not to encompass other types of habeas relief. (See Stats. 1957,
ch. 1561, § 1.) Moreover, the People fail to explain why, if a grant of new trial falls
within the terms “discharge” and “release,” the same could not be said of any relief a
court might grant on habeas corpus to a defendant who will remain in state custody. The
People’s interpretation of release and discharge as all-encompassing would render the
language “otherwise granting all or any part of the relief sought” and “relief other than a
discharge or release from custody” entirely superfluous, again violating a core principle
of statutory construction.
We are also not persuaded by the People’s argument that section 1506 should not
be interpreted to confer jurisdiction on the trial court to execute a habeas order granting
petitioner a new trial pending the People’s appeal from that order. We discern no such
limits on the scope of section 1506 from the statute itself, its legislative history, or the
applicable—albeit limited—case law.
We recognize that the general rule that an appeal automatically stays the trial court
judgment serves the purpose of preventing the trial court from interfering with the
the dismissal order rather than the habeas order. The record does not reflect the trial
court’s disposition of the People’s motion, though presumably the court denied it. As
described above, however, we stayed the dismissal order pending resolution of the
People’s appeal in case No. A150273 on May 2, 2017.
39
appellate court’s jurisdiction and rendering the appeal moot. Our interpretation and
application of section 1506 does not contravene that purpose. If the People and the trial
court had proceeded to retry Bilbrey while the People’s appeal from the order granting
habeas corpus was pending, this would have interfered with this court’s jurisdiction. Had
that occurred, we would have considered the appeal just as we have done, and if we had
reversed the order granting Bilbrey relief on the ground of ineffective assistance of
counsel, the original judgment against Bilbrey would have been reinstated and Bilbrey
returned to custody to serve his original sentence. The speedy trial violation would
become moot because the grant of new trial would be reversed. While we have reached a
different result in the habeas appeal, the People have not been prevented from
prosecuting that appeal and we have not been impeded in considering it.
Thus, we agree with Bilbrey that, absent a stay pending resolution of the People’s
appeal, the trial court retained jurisdiction over his case, including his motion to dismiss.
The language and context of section 1506 necessarily imply that a court that grants
habeas relief other than a discharge from custody retains jurisdiction to undertake further
proceedings despite the pending appeal unless and until the People request and the court
grants a stay. Here, the People did not seek a stay, meaning the trial court retained
jurisdiction to rule on Bilbrey’s motion to dismiss. We turn, then, to consider the
propriety of the trial court’s order granting that motion.
B. The Section 1382 Dismissal Order Was Proper.
We review a trial court’s ruling on a motion to dismiss pursuant to section 1382 of
the Penal Code for abuse of discretion. (People v. Hajjaj (2010) 50 Cal.4th 1184, 1197–
1198.)
Section 1382, subdivision (a) provides in relevant part that, “unless good cause to
the contrary is shown,” a court “shall order the action to be dismissed” in a felony case
when the defendant “is not brought to trial . . . after the issuance of a writ or order, which,
in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the
40
trial court and served upon the prosecuting attorney.” (§ 1382, subd. (a), (a)(2).)15 The
language concerning a writ or order granting new trial was added to the statute after the
courts in Sykes v. Superior Court (1973) 9 Cal.3d 83 (Sykes) and People v. Guaracha
(1969) 272 Cal.App.2d 839 held that felons who are afforded habeas corpus relief
granting a new trial are entitled to a speedy retrial. (5 Witkin, Cal. Crim. Law
(4th ed. 2012) Criminal Trial, § 338, p. 568; see Stats. 1973, ch. 847, § 1.)
15
Section 1382, subdivision (a)(2) provides in its entirety:
“(2) In a felony case, when a defendant is not brought to trial within 60 days of the
defendant’s arraignment on an indictment or information, or reinstatement of criminal
proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2,
or, in case the cause is to be tried again following a mistrial, an order granting a new trial
from which an appeal is not taken, or an appeal from the superior court, within 60 days
after the mistrial has been declared, after entry of the order granting the new trial, or after
the filing of the remittitur in the trial court, or after the issuance of a writ or order which,
in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the
trial court and served upon the prosecuting attorney, or within 90 days after notice of the
writ or order is filed in the trial court and served upon the prosecuting attorney in any
case where the district attorney chooses to resubmit the case for a preliminary
examination after an appeal or the issuance of a writ reversing a judgment of conviction
upon a plea of guilty prior to a preliminary hearing. However, an action shall not be
dismissed under this paragraph if either of the following circumstances exists:
“(A) The defendant enters a general waiver of the 60-day trial requirement. A general
waiver of the 60-day trial requirement entitles the superior court to set or continue a trial
date without the sanction of dismissal should the case fail to proceed on the date set for
trial. If the defendant, after proper notice to all parties, later withdraws, in open court, his
or her waiver in the superior court, the defendant shall be brought to trial within 60 days
of the date of that withdrawal. Upon the withdrawal of a general time waiver in open
court, a trial date shall be set and all parties shall be properly notified of that date. If a
general time waiver is not expressly entered, subparagraph (B) shall apply.
“(B) The defendant requests or consents to the setting of a trial date beyond the 60-day
period. In the absence of an express general time waiver from the defendant, or upon the
withdrawal of a general time waiver, the court shall set a trial date. Whenever a case is
set for trial beyond the 60-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.”
41
The statutory speedy trial rights provided in section 1382 and related sections of
the Penal Code “ ‘are supplementary to and a construction of’ the state constitutional
speedy trial guarantee.” (People v. Martinez (2000) 22 Cal.4th 750, 766.)
“[S]ection 1382 constitutes a legislative endorsement of dismissal as a proper judicial
sanction for violation of the constitutional guarantee of a speedy trial and as a legislative
determination that a trial delayed more than 60 days is prima facie in violation of a
defendant’s constitutional right.” (Sykes, supra, 9 Cal.3d at p. 89.)
Here, the People first argue dismissal was improper because the 60-day period for
Bilbrey to be retried has not begun to run, and will not do so unless and until the habeas
order becomes final. They rely on Sykes, suggesting that the time period runs only when
the People do not appeal. The People suggest their appeal of the habeas order tolled the
60-day period pending the outcome of their appeal. We find no support for this
proposition in Sykes.
In Sykes, our Supreme Court considered whether the 60-day period applied where
a petitioner had obtained relief by way of a writ of habeas corpus rather than one of the
procedures described in the express provisions of the then current version of section 1382
(i.e., after a mistrial, entry of an order granting a new trial or filing of a remittitur in the
trial court after a conviction has been reversed on appeal). (Sykes, supra, 9 Cal.3d at
pp. 88–90.) Invoking the self-executing provisions of the California Constitution, which
independently guarantee the right to a speedy trial, the court noted that a “person who has
been released on a writ and ordered to be rearraigned for plea and retried on the original
charges has the same interest in a speedy trial as do persons whose circumstances come
within the express provisions of [section 1382].” (Sykes, at p. 92.) Thus, the court
concluded, there was “no reasonable justification for excluding from the 60-day provision
those defendants who establish their right to a retrial by way of a writ as distinguished
from those who establish such right by other legal processes.” (Ibid.) Upon concluding
the People had failed to show good cause for the delay in retrying Sykes, the court issued
a peremptory writ of mandate directing dismissal of the charges against him. (Id. at
pp. 94–95.)
42
We agree there is no indication the People had appealed the order granting Sykes
habeas relief, but that fact was immaterial to the Sykes court’s determination. As Bilbrey
suggests, the effect of an appeal on the 60-day period was simply not before the court.
Thus, Sykes lends no support to the People’s contention that the 60-day provision does
not apply when they have appealed an order granting habeas relief. (People v. Jennings
(2010) 50 Cal.4th 616, 684 [“ ‘cases are not authority for propositions not
considered’ ”].)
Rather, the import of Sykes was to make clear that a habeas petitioner has a
constitutional speedy trial right that applies after a trial court has granted a new trial as
relief on a petition for habeas corpus. Sykes recognized the right to a speedy trial as a
fundamental right secured by the United States and California Constitutions, noting that it
embodies a policy to expedite criminal proceedings “to the greatest degree that is
consistent with the ends of justice.” (Sykes, supra, 9 Cal.3d at p. 88.) As we have noted,
the Legislature amended section 1382 in 1973 to expressly cover the situation addressed
in Sykes by specifying the time limits on retrial “after the issuance of a writ or order
which, in effect, grants a new trial.” (5 Witkin, Cal. Crim. Law (4th ed. 2012) Criminal
Trial, § 338, p. 568.)
Other than Sykes, the People cite no authority for the proposition that the 60-day
statutory period was tolled by their habeas appeal. Given our preceding analysis of
section 1506 and the fundamental nature of a criminal defendant’s right to a speedy trial,
we are not inclined to adopt such a position here. And there is another reason to reject
the tolling argument, which concerns the language of section 1382. With respect to
mistrials and orders granting new trials, if an appeal is not taken, or if an appeal from
such orders is taken, subdivision (a)(2) provides that the 60-day time period shall run
from the date “after the mistrial has been declared, after entry of the order granting the
new trial, or after the filing of the remittitur in the trial court.” (§ 1382, subd. (a)(2)
[quoted in full in note 15, ante], italics added.) In addressing the “issuance of a writ or
order which, in effect, grants a new trial,” however, the statute makes no reference to an
appeal being taken or to the filing of a remittitur, but specifies only that the time period
43
runs from the date “notice of the writ or order is filed in the trial court and served upon
the prosecuting attorney.” While the Legislature thus provided in effect that the appeal
from a trial court order declaring a mistrial or granting new trial would toll the speedy
trial period, it provided no such tolling in the case of an appeal from a grant of a writ. If
it had intended to toll the speedy trial period for writs when it amended the statute to
include them, it presumably would have employed language similar to that already
contained in the statute in regard to mistrials and orders granting a new trial. (See Kray
Cabling Co. v. County of Contra Costa (1995) 39 Cal.App.4th 1588, 1593 [“ ‘Where the
same word or phrase might have been used in the same connection in different portions
of a statute but a different word or phrase having different meaning is used instead, the
construction employing that different meaning is to be favored’ ”].)
In the alternative, the People argue that their pending appeal in case No. A150273
constituted good cause to go beyond the 60-day statutory period. “What constitutes good
cause for the delay of a criminal trial is a matter that lies within the discretion of the trial
court. [Citations.] In reviewing trial courts’ exercise of that discretion, the appellate
courts have evolved certain general principles. The courts agree, for example, that delay
caused by the conduct of the defendant constitutes good cause to deny his motion to
dismiss. Delay for defendant’s benefit also constitutes good cause. Finally, delay arising
from unforeseen circumstances, such as the unexpected illness or unavailability of
counsel or witnesses constitutes good cause to avoid dismissal. Delay attributable to the
fault of the prosecution, on the other hand, does not constitute good cause. Neither does
delay caused by improper court administration.” (People v. Johnson (1980)
26 Cal.3d 557, 570, fns. omitted.)
In support of their good-cause argument, the People rely on cases in which courts
considered whether an appeal may be valid justification for a delay in bringing a
defendant to trial. (See United States v. Loud Hawk (1986) 474 U.S. 302; People v.
Superior Court (Arevalos) (1996) 41 Cal.App.4th 908; People v. Hernandez (1985)
166 Cal.App.3d Supp. 1; and Arnold v. Superior Court (1971) 16 Cal.App.3d 984.)
Some of these and other cases suggest that the People’s pending appeal can constitute
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good cause for delaying trial beyond the statutory period, or at least constitute a
substantial factor in support of a good cause finding. (See People v. Superior Court
(Gonzales) (1991) 228 Cal.App.3d 1588 [concluding dismissal of felony information
under section 1382 was not warranted because the People had sought interlocutory
appellate review of trial court’s refusal to honor their peremptory challenge under
section 170.6 of the Code of Civil Procedure]; Marcotte v. Superior Court (1976)
64 Cal.App.3d 235, 242 [concluding dismissal under section 1382 was not warranted
because section 1538.5, subdivision (l) had automatically stayed trial and extended the
section 1382 time period to allow the People to file a notice of appeal, noting “[a]ny other
result would vitiate one of the underlying purposes of section 1538.5, which is to allow
the People to seek appellate review of an adverse ruling on the admissibility of
evidence”].)
But it was the People’s burden to seek a stay by demonstrating good cause in a
motion or application for a stay (Batey v. Superior Court (1977) 71 Cal.App.3d 952, 957)
and to seek such relief prior to the expiration of the 60-day speedy trial deadline. Though
the record reflects the trial court was aware of the People’s pending appeal in case
No. A150273, it also reflects the People did not provide the court with any authority
supporting the proposition that their appeal justified the delay that would result from a
stay. They argued only that forcing them to retry the case would deprive them of their
remedy by way of appeal, which as we have already indicated is not accurate. (See
pp. 39–40, ante.) If the People had sought a stay and demonstrated it would be
burdensome to require them to retry the case, they were likely to succeed on appeal, and
the burden on the People outweighed any possible prejudice to Bilbrey from delaying the
retrial, the court might well have granted the stay. However, having failed to seek a stay
pending appeal or to show good cause for a stay, the People have no basis for
complaining that the statutory period for bringing the case to trial was not tolled, and as a
result their further failure to bring the case to trial within the statutory period required the
trial court to dismiss the case.
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In short, we conclude that the People have not met their burden to show the trial
court abused its discretion by dismissing Bilbrey’s case under section 1502.
DISPOSITION
The November 21, 2016 order granting Bilbrey’s petition for writ of habeas
corpus and the March 22, 2017 order granting Bilbrey’s motion to dismiss are affirmed.
Our May 2, 2017 stay of the dismissal order will dissolve upon issuance of the remittitur.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Bilbrey (A150273, A151401)
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Trial Court: Solano County Superior Court
Trial Judges: Hon. Paul L. Beeman, Hon. Allan P. Carter
Counsel:
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan,
Supervising Deputy Attorney General, Michael Chamberlain, Bridget Billeter, Deputy
Attorneys General, for Plaintiff and Appellant.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Respondent.
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