Elias v. Super. Ct.

Filed 5/17/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RUBEN ELIAS, D079425
Petitioner, (San Diego County
Super. Ct. No. SCE400093)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Roderick W. Shelton, Robert O.
Amador, Evan P. Kirvin, Daniel G. Lamborn, and John M. Thompson,
Judges. Petition denied.
Randy Wagner, under appointment by the Court of Appeal, for
Petitioner.
No appearance for Respondent.
Summer Stephan, District Attorney, Linh Lam, Valerie Ryan, and
Elizabeth Renner, Deputy District Attorneys, for Real Party in Interest.
I.
INTRODUCTION
Petitioner Ruben Elias is awaiting trial on charges arising from several
alleged incidents of domestic violence that occurred in March and April 2020,
during the early months of the COVID-19 pandemic.
In early March 2020, the Governor of California declared a state of
emergency in California, and the President declared a national emergency
due to the COVID-19 pandemic. Based on health recommendations, the
Chief Justice of the State of California issued statewide emergency orders
suspending in-person jury trials and, among other things, extending
statutory deadlines for trials in criminal proceedings. The Chief Justice
authorized local courts to adopt local rules to address the impact of the
COVID-19 pandemic. The Presiding Judge of the San Diego Superior Court
issued a general order in April 2020 closing courtrooms and extending the
time period provided in Penal Code1 section 1382 for holding criminal trials.
The health and safety concerns associated with the pandemic along with
public health orders from the State of California and the County of San Diego
caused “substantial operational impediments for the court.” The superior
court issued a series of general orders that, among other things, extended the
1 Further statutory references are to the Penal Code unless otherwise
stated.
2
time for holding criminal trials by 30 days at a time. Those orders remain in
effect.2
Elias was arraigned on May 13, 2020 and the court held him to answer
the charges against him on May 27, 2020. He was arraigned on the
information in June 2020, and on an amended information in August 2020.
His trial was initially set in October 2020, but it was continued several times
until June 2021 based on the COVID-19 general orders and instances when
Elias was in medical isolation.3
After the trial court granted two additional trial continuances on June
24 and July 6, 2021, and denied his motion to dismiss on August 9, 2021,
Elias filed a petition for writ of habeas corpus contending the court violated
his right to a speedy trial pursuant to section 1382 and the federal
Constitution. We construed the petition as a petition for writ of mandate
and/or prohibition requesting dismissal of the case for violation of Elias’s
2 See April 25, 2022, General Order No. 042522-60 (San Diego Superior
Court Online (2022) [as of May 17, 2022], archived at ), March 24, 2022, General Order No. 032422-58 (id.,
[as of May 17,
2022], archived at ), February 23, 2022,
General Order No. 022322-52 (id., [as of May 17, 2022], archived at
), and January 24, 2022, General Order No.
012422-48 (id., [as of May 17, 2022], archived at .)
3 Elias does not challenge these earlier continuances in this proceeding.
3
speedy trial right, ordered respondent to show cause why relief should not be
granted, and stayed all trial court proceedings pending further order of this
court.4 We have considered the return of the real party in interest, the
People, Elias’s reply, and oral argument.
There is no question that the realities of the pandemic shutdowns and
related limitations have substantially inhibited the ability of the court
system to bring criminal cases to trial within normal statutory time frames.
Hundreds of in-custody criminal defendants are still awaiting trial. Given
the unique and unprecedented circumstances caused by the global public
health emergency, courts must exercise their inherent power to manage and
prioritize their cases to work through the backlog. The record before us
shows the court did just that. We conclude the court did not abuse its
discretion in finding good cause to grant the continuances or in denying
Elias’s motion to dismiss. We, therefore, deny the petition.
II.
BACKGROUND
A. Factual Background5
Elias started dating D.M. in October 2019 and they began living
together shortly thereafter. Their relationship was punctuated by domestic
violence over four of the six months they dated. In January 2020, Elias
struck D.M. in the stomach, arms, and legs after learning that they both
4 By the same order, we denied Elias’s petition to set aside the
information based on a claim of ineffective assistance of counsel at the
preliminary hearing. (§§ 995, 1510; Ghent v. Superior Court (1979)
90 Cal.App.3d 944, 950.)
5 We draw the factual background from the evidence presented at the
preliminary hearing.
4
contracted a sexually transmitted disease. In February 2020, Elias again
struck her in the stomach, arms, and legs while they were inside a vehicle.
When they got to their residence, Elias struck D.M. on the back of the head
and she lost consciousness. She awoke in a bathtub with Elias leaning over
her and crying. He said he thought he had killed her.
During an argument in March 2020, Elias grabbed D.M. by the throat
and applied so much pressure that she saw dots, became disoriented, felt she
was blacking out, and urinated herself. She had difficulty breathing and
feared for her life.
D.M. did not report the violent incidents because Elias threatened her.
He said he had killed someone before and he had gotten away with it. He
also said his family members, who were gangsters, would kill her and her
children if he was arrested. He said he would do anything to not go back to
prison and he would rather kill her than go to jail.
In early April 2020, they again argued about the sexually transmitted
disease and about D.M.’s ex-boyfriend. Elias struck D.M. multiple times with
the wooden handle of a plunger. D.M. had linear marks and bruises all over
her body consistent with a plunger handle. She also had a scrape on her
forearm she said she sustained when the plunger handle broke. She did not
report the incident because Elias threatened to kill her if she reported
anything.
On April 29, 2020, the couple argued again about the same issues.
Elias struck D.M. in the back of her head causing her to fall forward to the
bathroom floor. Elias forced her head toward the water in the toilet bowl,
saying he was going to drown her. During the struggle, D.M.’s face hit the
porcelain toilet bowl and a substantial piece of her tooth was knocked out.
Elias said, “ ‘Look what you made me do.’ ” He made D.M. get the tooth fixed
5
because he could not be seen with a girlfriend who was missing a tooth. D.M.
had constant pain on the side of her face after this incident and she could not
eat due to the pain.
Elias said he would hurt her so badly that she would not be able to
walk again and that he would make her disappear. She decided to report the
abuse because she was afraid that she would not be able to care for her
children if he followed through on his threats. D.M. went to the police on
May 4, 2020, and reported the abuse.
B. Procedural Background
Elias is charged with three counts of corporal injury to a spouse and/or
roommate (§ 273.5, subd. (a); counts 1 [incident between 3/1-31/20], 4
[incident between 4/1-28/20], and 6 [4/29/20 incident]), three counts of assault
by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 2
[incident between 3/1-31/20], 3 [incident between 4/1-28/20], and 5 [4/29/20
incident]), and one count of making a criminal threat (§ 422; count 7 [4/29/20
incident]). The third amended information alleges he committed counts 3
through 6 while he was on state prison parole following a term of
imprisonment for a 2011 conviction of serious or violent felony (§§ 206
[torture], 1203.085, subd. (a)) and that in committing counts 5 and 6, he
inflicted great bodily injury under circumstances involving domestic violence
(§ 12022.7, subd. (e)). It also alleges he was convicted of a serious felony prior
(§§ 667, subd. (a)(1), 668, and 1192.7, subd. (c)) and prior strike convictions
(§§ 667, subds. (b)–(i), 1170.12, and 668).
Elias was arraigned on May 13, 2020. The court held Elias to answer
all counts and allegations after the preliminary hearing on May 27, 2020. He
was arraigned on the information in June 2020 and on an amended
information in August 2020.
6
After several continuances based on the superior court’s emergency
general orders and Elias’s unavailability due to medical isolation, the matter
came on for trial call on June 17, 2021. The court continued the trial call
because Elias did not consent to appear in a closed remote proceeding.
Elias appeared on June 21, 2021, and his defense attorney answered
ready for trial. The prosecutor requested either a 30-day continuance based
on the court’s general order, or a short continuance within the prosecutor’s
trailing window because the People were not ready and planned to subpoena
witnesses that day.
The court explained to Elias that if a courtroom was not available it
could continue the trial 30 days under the general orders. However, the court
stated a courtroom was available that day, so it continued the matter three
days at the request of the prosecutor.
The prosecutor issued trial subpoenas pursuant to the standard office
procedures and learned that same day that the officer who took D.M.’s
statements and documented her injuries had been out of state on vacation
since the beginning of June and would not return until after July 4, 2021.
The prosecutor moved to continue the trial pursuant to section 1050 based on
the unavailability of a necessary and material witness.
On June 24, 2021, over the defendant’s objection, the court granted the
People’s continuance request due to witness unavailability. Defense counsel
advised the court that she would be unavailable after July 12 and questioned
whether trial could be completed before that date. The court set the new trial
for July 6, 2021, saying they would deal with the scheduling issue then.
On July 6, 2021, defense counsel answered ready before the
Supervising Judge in the criminal master calendar department. The
prosecutor asked to trail the case saying the People were not ready. The
7
prosecutor estimated a one-week trial from when the witnesses would be
available, which she stated was not that day. Defense counsel objected to
trailing, saying she did not want to extend the case. Defense counsel said she
was scheduled for a vacation between July 13 and 20, 2021. The Supervising
Judge denied the People’s request to trail and sent the matter to a courtroom.
The assigned trial judge, however, stated it had only two and a half
days available for a trial within the next week to try a case with a one-week
estimate. The court commented that it did not know why the case was sent
to that department because it could not try the case before defense counsel’s
scheduled vacation.
Defense counsel moved to release Elias or to dismiss the case. The
court advised Elias that he was in the same spot as about 400 other in-
custody individuals awaiting trial. The court commented, “The pandemic has
caused a significant disaster for the courts and, more importantly, for
criminal defendants” based on delays due to the pandemic, lack of
courtrooms, and lack of jurors.
When the court suggested it would find his attorney was not ready
because trial could not be completed before her vacation, defense counsel
objected. She emphasized that she was ready to start trial and had been
ready for trial since June. She agreed it was not possible to complete the
trial within the assigned department’s schedule that week, but she could not
say it would be impossible to complete the trial in another department.
Defense counsel also said the prosecution was not ready because it did not
have its witnesses. When the court inquired, the prosecutor said the
witnesses were under subpoena and she could start trial, but that she told
the witnesses it was unlikely the trial would go forward that day.
8
After a discussion off the record, the court continued the matter
pursuant to the then-applicable general order, to August 9, 2021, plus 11
days. Defense counsel did not object to this trial date. Subsequent general
orders further extended the trial deadline under section 1382.
By the end of July 2021, the court resumed using all of its courtrooms
after physical distancing requirements were lifted. Jury summonses were
gradually brought back up to pre-pandemic levels.
Shortly before the continued trial date, defense counsel filed a motion
asking the court to dismiss the charges and allegations against Elias in the
furtherance of justice pursuant to sections 1385 and 1049.5.6 Defense
counsel argued that the People improperly delayed in preparing the case for
trial noting the prosecution only recently produced discovery including jail
calls, witness interviews, photographs, and e-discovery in July 2021. Defense
counsel stated the discovery was “overwhelming” and, due to the delay in
preparing the prosecution’s case, Elias was faced with either waiving time to
allow his attorney to digest the discovery or proceed with trial to preserve his
speedy trial rights.
The People opposed the motion stating they provided the defense with
jail calls more than 30 days before trial and identified those they planned to
6 Section 1049.5 provides in pertinent part, “In felony cases, the court
shall set a date for trial which is within 60 days of the defendant’s
arraignment in the superior court unless, upon a showing of good cause as
prescribed in Section 1050, the court lengthens the time.”
Section 1385, subdivision (a) provides in pertinent part that a judge
may “in furtherance of justice, order an action to be dismissed.” A “defendant
has no right to make a motion, and the trial court has no obligation to make a
ruling” under section 1385. (People v. Carmony (2004) 33 Cal.4th 367, 375
(Carmony).) However, the defendant “does have the right to ‘invite the court
to exercise its power by an application to strike a count or allegation of an
accusatory pleading . . . .’ ” (Ibid.)
9
introduce. The People provided transcripts of previously disclosed calls along
with demonstrative aids they planned to use at trial and information about
areas of anticipated expert testimony. The People also provided new
information provided by the victim about continuing medical treatment.
The matter was called for trial on August 9, 2021. The court conducted
a hearing on Elias’s motion to relieve his counsel, which the court denied.
The court indicated it would allow Elias to represent himself but agreed to
first hear defense counsel’s motion to dismiss. Defense counsel argued the
case was delayed not only due to the pandemic, but also because the
prosecution was not diligent in preparing the case for trial. She recited the
prior delays in June and July and the recent discovery, saying it appeared
the People did not prepare the case until after July 6. The prosecutor stated
they produced newly acquired information and medical records from the
victim regarding her injuries, citing their continued obligation under the
discovery rules. The only things that were disclosed within the 30-day
window before trial were curriculum vitaes for experts. The prosecutor noted
the court found good cause to continue the matter previously and stated it
would not be in the furtherance of justice to dismiss this very serious case.
The court denied the motion.
The court discussed Elias’s request to represent himself and whether
he would waive time to prepare for trial. The matter was continued to the
following day to allow Elias time to consider the representation issue. The
following day, Elias withdrew his request to represent himself. The court
granted a trial continuance in light of the new discovery to September 7,
10
2021. The matter was continued several more times for good cause because
Elias was in medical isolation. In the interim, Elias filed this writ petition.7
III.
DISCUSSION
A. General Legal Principles
“ ‘The right to a speedy trial is a fundamental right guaranteed by both
the Sixth Amendment to the United States Constitution and article I, section
15 of the California Constitution. [Citation.] The purpose of the speedy trial
right is “(i) to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” [Citation.] “To implement an accused’s
constitutional right to a speedy trial, the Legislature enacted section
1382.” ’ ” (Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th
1108, 1122; see Barker v. Wingo (1972) 407 U.S. 514, 532 (Barker); People v.
Martinez (2000) 22 Cal.4th 750, 754, 768 (Martinez).)
“Under the state Constitution, . . . the showing that the defendant must
make depends upon whether the allegedly unreasonable delay occurred
before or after the defendant's statutory speedy trial rights attached. The
statutory speedy trial provisions, . . . sections 1381 to 1389.8, are
‘supplementary to and a construction of’ the state constitutional speedy trial
guarantee. [Citations.] . . . No affirmative showing of prejudice is necessary
to obtain a dismissal for violation of the state constitutional speedy trial
right as construed and implemented by statute. [Citation.] Instead, ‘an
unexcused delay beyond the time fixed in section 1382 . . . without
7 The court relieved Elias’s former attorney on October 4, 2021 and
appointed a new attorney the following day.
11
defendant’s consent entitles the defendant to a dismissal.’ ” (Martinez, supra,
22 Cal.4th at p. 766.)
Pursuant to sections 1049.5 and 1382, the defendant in a felony case
must be brought to trial within 60 days of his arraignment on an indictment
or information unless, on a good cause showing, the court lengthens the time.
(§§ 1049.5, 1382, subd. (a)(2).) A trial court may grant a trial continuance
“only upon a showing of good cause.” (§1050, subd. (e).)
“[S]ection 1382 provides that an action shall be dismissed if trial is not
commenced within the statutory time limits ‘unless good cause to the
contrary is shown.’ ([]§ 1382, subd. (a).) ‘The cases recognize that, as a
general matter, a trial court “has broad discretion to determine whether good
cause exists to grant a continuance of the trial” [citation], and that, in
reviewing a trial court’s good-cause determination, an appellate court applies
an “abuse of discretion” standard.’ (People v. Sutton (2010) 48 Cal.4th 533,
546.) ‘[I]n making its good-cause determination, a trial court must consider
all of the relevant circumstances of the particular case, “applying principles
of common sense to the totality of circumstances . . . .” ’ ” (Stanley v. Superior
Court (2020) 50 Cal.App.5th 164, 169 (Stanley).) “Discretion is abused only
when the court exceeds the bounds of reason, all circumstances being
considered.” (In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
“Section 1385 allows the court to dismiss an action ‘in furtherance of
justice.’ To give effect to this language in section 1385, courts must balance
the constitutional rights of the defendant against the interests of society as
represented by the People. Society has a legitimate interest in the
prosecution of crimes in accordance with fair and lawful procedures.
Therefore, dismissing a criminal complaint under section 1385 in a case
where there is probable cause that the defendant committed the offense is a
12
disfavored practice among appellate courts.” (People v. Henderson (2004)
115 Cal.App.4th 922, 936, fns. omitted.) We review a court’s determination of
whether to dismiss under section 1385 for abuse of discretion. (People v.
Halim (2017) 14 Cal.App.5th 632, 649, citing Carmony, supra, 33 Cal.4th at
p. 374.)
“For the federal Constitution’s speedy trial right, the United States
Supreme Court has articulated a balancing test that requires consideration of
the length of the delay, the reason for the delay, the defendant’s assertion of
the right, and prejudice to the defense caused by the delay.” (Martinez,
supra, 22 Cal.4th at p. 755, citing Barker, supra, 407 U.S. at p. 530.) When
the delay is of sufficient length to be presumptively prejudicial, any actual
prejudice is balanced with the other Barker factors, including the justification
for the delay. (Serna v. Superior Court (1985) 40 Cal.3d 239, 252.)
B. June Continuance for Unavailable Witness
A trial continuance due to a witness’s unavailability may be considered
good cause if “(1) the party seeking the delay has exercised due diligence in
securing the attendance of the witness at trial by legal means, (2) the
testimony of the witness is material, (3) the testimony is not merely
cumulative, (4) the attendance of the witness can be obtained within a
reasonable time, and (5) the facts about which the witness is expected to
testify cannot otherwise be proven.” (Baustert v. Superior Court (2005)
129 Cal.App.4th 1269, 1277, citing Owens v. Superior Court (1980) 28 Cal.3d
238, 250–251 (Owens).)
The officer who took D.M.’s statements and documented her injuries
was undoubtedly an important material witness, particularly since D.M.
apparently recanted her testimony. Once the prosecutor learned the witness
13
was out of state, she immediately moved to continue the trial approximately
two weeks so he could testify.
Elias contends the prosecutor unreasonably delayed in issuing the
subpoena for the officer. Section 1328 “does not mandate service within a set
number of days before a witness may be compelled to appear in court”;
indeed, the “Legislature anticipated that service of a subpoena on a peace
officer frequently may be on short notice and that there will be times when
an officer will not be available either for service or to appear on the scheduled
date.” (People v. Shane (2004) 115 Cal.App.4th 196, 203.) Although “[t]he
time to ascertain the availability of a police officer/witness is not on the date
set for trial” (Brown v. Superior Court (1987) 189 Cal.App.3d 260, 265), the
determination of diligence is fact-specific and made on a case-by-case basis.
(Owens, supra, 28 Cal.3d at p. 250, superseded by statute on other grounds as
stated in People v. Perez (1989) 207 Cal.App.3d 431, 436; Shane, at p. 205
[unreasonable to require a prosecutor to anticipate an officer’s lengthy
absence]; Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560–561 [a
subpoenaed material witness’s failure to appear for trial may constitute good
cause for a continuance under section 1382].)
The trial in this case was continued multiple times for more than a
year due primarily to the COVID-19 pandemic. Once it became clear that
trial would finally proceed, we cannot say the prosecutor’s service of the
subpoena on June 21, 2021, was improper. Given the fact that the witness
had been out of state since the first of June 2021, we will not speculate about
whether his availability would have changed if the prosecutor issued the
subpoena a week or two earlier. The court did not abuse its discretion in
finding good cause to grant the request for a reasonable continuance based on
witness unavailability.
14
C. July Continuance Based on General Orders.
Elias next contends the court abused its discretion in granting a
continuance on July 6, 2021, based on the court’s general orders because a
courtroom was available that day and because the next hearing was more
than 30 days later. We disagree.
When the parties arrived in the assigned trial department, both sides
answered ready. Despite allegations that the prosecution was not ready, the
prosecutor stated she could start trial if necessary. However, as Elias
acknowledged in his petition, the court told the parties they could not select a
jury until the following day and the court had only limited availability for
trial that week. After considering the arguments of counsel and its limited
availability to try this case, the court ultimately determined it should
continue the matter based on the existing general order, which extended the
time for trial by 30 days. The court set a new trial date, without further
objection from the defense, and stated there were 11 days left for trial. A
subsequent general order again extended the time 30 additional days.
The court’s order continuing the matter based on the general order
must be understood within the context of the issues facing the court as a
result of the COVID-19 pandemic. A general order issued by the San Diego
County Superior Court Presiding Judge explained that the San Diego
Superior Court’s ability to conduct in-person jury trials was “severely limited”
between May 26, 2020, through June 15, 2021 and the resumption of jury
trials had been “a slow and cumbersome process” due to the numerous
federal, state, and local public health orders issued in response to the
COVID-19 pandemic, which “affected the court’s ability to bring in large
numbers of jurors for multiple trials at a given time and its ability to
coordinate and manage jurors’ movements around the courthouses.” The
15
exceptional circumstances created by the COVID-19 pandemic “resulted in
approximately 2,700 criminal cases with pending trial dates through August
31, 2021, including approximately 500 cases involving in-custody
defendants. . . . Even if the court were operating at its full pre-pandemic
capacity of 70–90 jury trials per month (including criminal and civil), it would
still take a significant amount of time to get through this number of cases.”
This is consistent with the court’s comments to Elias explaining that
hundreds of other in-custody defendants were also awaiting trial due to
delays caused by the pandemic and challenges regarding the lack of
courtrooms and jurors.
The general order acknowledged the need to prioritize in-custody
criminal matters, particularly when the time provided by section 1382 had
been extended by a judicial emergency order. However, the general order
also stated that “in exercising the court’s inherent judicial authority to fairly
and efficiently administer all pending judicial proceedings, the court must
exercise its discretion to prioritize cases based on its determination of the
interests of justice and the caseload before it.” It would not be unreasonable
for the court to determine its judicial resources could be better used to start
and complete a case with a shorter trial estimate, given its limited
availability.
Under the circumstances, we cannot fault the court for its
determination that there was good cause to continue the matter based on the
general orders. “It is well established, in California and elsewhere, that a
court has both the inherent authority and responsibility to fairly and
efficiently administer all of the judicial proceedings that are pending before
it, and that one important element of a court’s inherent judicial authority in
this regard is ‘the power . . . to control the disposition of the causes on its
16
docket with economy of time and effort for itself, for counsel, and for litigants.
How this can best be done calls for the exercise of judgment, which must
weigh competing interests and maintain an even balance.’ ” (People v.
Engram (2010) 50 Cal.4th 1131, 1146.)
The backlog here was not a routine or chronic condition for the court.
The COVID-19 pandemic has been a “ ‘unique, nonrecurring event[]’ ” which
“ ‘ha[s] produced an inordinate number of cases for court disposition.’ ”
(People v. Johnson (1980) 26 Cal.3d 557, 571.) Although the continuances in
this case have been lengthy, the COVID-19 pandemic has been “of such
severity as to justify” the continuance. (Stanley, supra, 50 Cal.App.5th at
p. 169.)
D. Denial of Motion to Dismiss
At the continued trial date on August 9, 2021, the court heard and
considered the defense motion to dismiss. We conclude the court did not
abuse its discretion in denying the motion.
First, there was no violation of Elias’s statutory right to speedy trial.
The series of emergency orders from the Chief Justice and the San Diego
Superior Court, which remain in effect, have extended the section 1382
period to commence trials for criminal defendants due to the COVID-19
pandemic. (Gov. Code, § 68115, subd. (a)(5) and (10); People v. Rubaum
(1980) 110 Cal.App.3d 930, 934 [showing of good cause for continuance is not
required if the statutory time has not expired].) Therefore, the time to bring
Elias to trial has not expired. Additionally, as we have concluded, the court
did not abuse its discretion in determining that good cause existed to
continue the trial in June and July 2021 due to witness unavailability and
the court’s general orders.
17
Second, dismissal was not warranted under the federal Constitution.
Delays approaching one year after accusation are generally presumptively
prejudicial. (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1
(Doggett).) “Nevertheless, because of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry is necessarily
dependent upon the peculiar circumstances of the case.” (Barker, supra,407 U.S. at pp. 530–531.)
Trial was continued in this case for reasons undisputedly related to the
COVID-19 pandemic for at least 13 out of 15 months from the time Elias was
held to answer at the end of May 2020 until August 2021 when the court
denied the motion to dismiss. Courts have recognized that “[h]ealth
quarantines to prevent the spread of infectious diseases have long been
recognized as good cause for continuing a trial date.” (Stanley, supra,
50 Cal.App.5th at p. 169, citing In re Venable (1927) 86 Cal.App. 585, 587 and
People v. Tucker (2011) 196 Cal.App.4th 1313, 1315, 1318.) “ ‘A contrary
holding would require trial court personnel, jurors, and witnesses to be
exposed to debilitating and perhaps life-threatening illness. Public health
concerns trump the right to a speedy trial.’ ” (Stanley, at p. 169.) We
acknowledge the “unfortunate hardship to defendant” from the delays in this
case, but, as in Stanley, “neither the prosecution nor the court is responsible
for the emergency that has overwhelmed the nation and much of the world.”
(Id. at p. 170.) Any delay attributable to an unavailable witness or
scheduling issues was limited to a few weeks.
Even if we were convinced that the delays in this case give rise to a
presumption of prejudice to trigger balancing the Barker factors, we conclude
there was no violation of Elias’s Sixth Amendment speedy trial right.
18
The reason for delay, Barker’s second factor, must also be considered in
context. “A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighted less
heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather
than with the defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531,
fn. omitted.) We review trial court determinations on this issue with
considerable deference. (Doggett, supra, 505 U.S. at p. 652.)
Elias suggests the prosecution intentionally or negligently delayed trial
preparation citing not only a delay in subpoenaing a material witness, but
also the production of discovery after the July 6 continuance while defense
counsel was on vacation. The prosecutor stated that much of the discovery
was previously provided to the defense and the remaining material was new
information the People received within 30 days before trial, including new
information from the victim regarding additional injuries.
As we have already discussed, the delays in this case were for valid
reasons. After a year of continuances based on the COVID-19 pandemic, the
court found good cause to continue the trial from June to July 2021 based on
the unavailability of the material witness, and from July to August based on
the court’s availability and the general orders. The court made no findings of
negligence on the part of the prosecution with respect to either the
continuances or the discovery issue. We will not, on this record, presume
either negligent or deliberate delay by the People.
Elias objected to the trial continuances, a factor that weighs in his
favor. However, he has not shown actual prejudice or impairment of his
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ability to present a defense such as the loss of exculpatory evidence or
dimming memories. Although he has had a lengthy incarceration during the
pendency of his unresolved criminal charges, he is in the same position as
hundreds of other in-custody defendants awaiting trial due to COVID-19
pandemic delays. Lengthy pretrial incarceration “ ‘ “unenhanced by tangible
impairment of the defense function and unsupported by a better showing on
the other [Barker] factors than was made here, does not alone make out a
deprivation of the right to a speedy trial.” ’ ” (People v. Bradley (2020)
51 Cal.App.5th 32, 43.)
IV
DISPOSITION
The petition for writ of mandate is denied. The stay of the trial court
proceedings is lifted.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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