Salari v. Super. Ct.

Filed 5/22/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RAMIN SALARI, B295511
Petitioner, (Los Angeles County
v. Super. Ct. Nos. BA403666 &
BA417226)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent,
THE PEOPLE,
Real Party in Interest.
MARK THOMAS McNEIL, B295653
Petitioner, (Los Angeles County
v. Super. Ct. No. BA403666)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent,
THE PEOPLE,
Real Party in Interest.
JOHN NOGUEZ, B295731
Petitioner, (Los Angeles County
v. Super. Ct. No. BA403666)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent,
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. George G.
Lomeli, Judge. Petitions granted.
Larson O’Brien, Stephen G. Larson, Koren L. Bell and
Steven A. Haskins for Petitioner Ramin Salari.
Steven Graff Levine for Petitioner Mark Thomas McNeil.
Anthony Falangetti for Petitioner John Noguez.
No appearance for Respondent.
Jackie Lacey, District Attorney, Phyllis C. Asayama and
Matthew Brown, Deputy District Attorneys for Real Party in
Interest.
_____________________________
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Relying on Penal Code section 1382, subdivision (a)(1),1 Ramin
Salari,2 Mark McNeil, and John Noguez (collectively, petitioners)
seek writs of mandate directing the superior court to dismiss the
untimely filed information against them. We conclude
petitioners are entitled to the dismissal they seek, which, we
note, is not a bar to another prosecution for the same felony
offenses. (§ 1387, subd. (a).)
PROCEDURAL BACKGROUND
An August 14, 2018 information charged petitioners with
conspiracy, grand theft, bribery, and embezzlement, among other
counts. The People alleged a scheme by petitioners to reduce the
assessed values of certain properties to improperly receive
property tax refunds. Petitioners each moved to dismiss on the
ground the People failed to file the information within 15 days of
the superior court’s holding order as required by sections 739 and
1382, subdivision (a)(1).
The superior court denied their motions to dismiss, finding
they had impliedly waived the 15-day deadline when they agreed
to a later arraignment date. It is undisputed that petitioners,
along with their counsel, each agreed to an August 21, 2018
arraignment. However, nothing was agreed to or said about the
date for filing the information. The information was filed on
1 All further section references are to the Penal Code.
2 There are two pending criminal cases against Salari in the
superior court, Case Nos. BA403666-02 and BA417226. Salari
moved to dismiss both on the ground the information was filed
past the 15-day statutory timeframe. Salari filed one
consolidated writ petition for both cases and therefore, they were
assigned the same case number in this court, B295511. The same
analysis and disposition applies to both cases.
3
August 14, 2018, 25 days after the holding order was issued on
July 20, 2018.
Petitioners each filed a petition for a writ of mandate
directing the superior court to dismiss the information, among
other relief.3 We issued orders to show cause why the relief
requested in the petitions should not be granted with respect to
petitioners’ motions to dismiss the information as untimely.
DISCUSSION
Petitioners argue section 1382, subdivision (a)(1), requires
dismissal of the information against them. We agree.
I. Standard of Review
In interpreting a statute, “ ‘ “[o]ur fundamental task . . .” ’
. . . ‘ “is to ascertain the intent of the lawmakers so as to
effectuate the purpose of the statute.” ’ ” (People v. Pennington
(2017) 3 Cal.5th 786, 795 (Pennington).) We focus first on
“ ‘the statute’s actual words, the “most reliable indicator” of
legislative intent, “assigning them their usual and ordinary
meanings . . . .” ’ ” (Ibid.) We view the statutory language in
context and do not determine its meaning “ ‘from a single word or
sentence.’ ” (Ibid.) If the statutory text “is unambiguous and
provides a clear answer, we need go no further.” (Microsoft Corp.
v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.) “[A]pparent
‘ambiguities often may be resolved by examining the context in
which the language appears and adopting the construction which
best serves to harmonize the statute internally and with related
statutes . . . .’ ” (Pennington, supra, at p. 795.) We independently
3 We consolidated the petitions for decision and argument
because each petitioner addresses the identical issue and the
People’s returns are substantially the same.
4
review a trial court’s statutory interpretation. (1305 Ingraham,
LLC v. City of Los Angeles (2019) 32 Cal.App.5th 1253, 1259.)
II. Dismissal is Required
Here, the statutory texts are unambiguous and in harmony
with the related statutes and rules. Section 739 requires, “When
a defendant has been examined and committed, . . . it shall be the
duty of the district attorney . . . to file in the superior
court . . . within 15 days after the commitment, an information
against the defendant . . . .” (See also Cal. Rules of Court, rule
4.110(1) [“The information must be filed within 15 days after a
person has been held to answer for a public offense.”].) Section
1382, subdivision (a)(1), further specifies, “The court, unless good
cause to the contrary is shown, shall order the action to be
dismissed . . . [w]hen a person has been held to answer for a
public offense and an information is not filed against that person
within 15 days.” “If the trial court erroneously denies a motion to
dismiss under section 1382, the defendant may obtain immediate
pretrial appellate reversal by writ of mandate, without
demonstrating prejudice stemming from the delay of trial.”
(People v. Cory (1984) 157 Cal.App.3d 1094, 1098; People v.
Wilson (1963) 60 Cal.2d 139, 149–151.)
Here, the information was filed on August 14, 2018, 25
days after the July 20, 2018 holding order. This was 10 days too
late. The People concede they failed to file the information
within the time frame required by section 1382, and they do not
assert they had good cause to file the information late. As a
result, section 1382, subdivision (a)(1), requires dismissal.
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To avoid this conclusion, the People argue petitioners
impliedly waived the 15-day deadline by agreeing to a later
arraignment date. We are not aware of any authority, and the
People present us with none, that holds a party impliedly waives
the right to the timely filing of an information by agreeing to a
later arraignment.4
In fact, the People’s implied waiver argument was
expressly rejected in Ciaccio v. Superior Court (1984) 156
Cal.App.3d 130 (Ciaccio), a case presenting substantially the
same facts. There, the defendant was silent when the magistrate
set an arraignment date more than 15 days after the holding
order. The People subsequently filed the information late
without good cause. (Id. at p. 132.) When the defendant moved
to dismiss the action under section 1382, subdivision (1) (now
subdivision (a)(1)), the People argued the defendant waived the
15-day requirement because he failed to object to the
arraignment date. The Court of Appeal rejected this argument,
noting there is no statutory time for an arraignment, as section
976 only requires that it occur after the accusatory pleading is
filed. (Id. at p. 133.) “The 60-day period specified by section
1382, subdivision 2 within which to bring a defendant to trial
runs from the date the information is filed, not from the date of
arraignment. Consequently, the magistrate could have
4 The parties have directed us to one case involving the
waiver of a timely-filed information. The court in People v.
Murray (1967) 247 Cal.App.2d 730, 732–733 found an express
waiver of the 15-day deadline where defense counsel requested
the information be filed beyond the statutory time limit for his
own convenience, and the defendant personally agreed to that
date. There is no dispute petitioners did not expressly waive
their right to a timely-filed information in this case.
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selected any arraignment date beyond 15 days of the order
holding petitioners to answer.” (Ibid.) Thus, “there was no
error to which [the defendant] could have objected.” (Ibid.)
The court further reasoned, “the district attorney is alone
authorized to file an information on behalf of the People (see
§§ 949 and 739), and is the sole authority capable of determining
when it will be filed. A criminal defendant has no effective
means whatsoever of assuring the information is filed within the
statutory period. Nothing about the magistrate’s order could
have alerted counsel the People would not comply with their
wholly unrelated section 739 obligation. Further, no objection on
counsel’s part could have influenced the People’s section 739
‘time to file’ discretion.” (Ciaccio, supra, 156 Cal.App.3d at
p. 133.)
We are persuaded by Ciaccio that there was no implied
waiver in this case. At the preliminary examination, the court
and the parties discussed continuing the date of arraignment.
There was no mention of the filing date for the information.
As in Ciaccio, “[n]othing about” the scheduling discussion
between the court and the parties “could have alerted counsel the
People would not comply with their wholly unrelated section 739
obligation” to file the information within 15 days. (Ciaccio,
supra, 156 Cal.App.3d at p. 133.) At the time of the preliminary
examination, there was no error to which petitioners could have
objected. Thus, petitioners’ agreement to the arraignment date
did not amount to an implied waiver of their right to have the
information filed within 15 days of being held to answer.
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The People attempt to circumvent Ciaccio’s holding by
arguing it is no longer valid because it relied on a previous
version of section 1382, which tethered the start of the speedy-
trial clock to the filing of the information. (Former § 1382, subd.
2 (1984); see Stats. 1998, ch. 98, § 1 (SB 1558).) It is true that in
1998, section 1382 was amended to start the 60-day speedy-trial
clock on the defendant’s arraignment in superior court. The
amendment, made effective on January 1, 1999, applies to this
case. (§ 1382, subd. (a)(2).) However, the People’s argument that
this change renders Ciaccio invalid is meritless.
The 1999 amendment does not invalidate Ciaccio’s
reasoning that the time requirements for an arraignment and an
information are separate obligations, fulfilled by separate
entities. Sections 739 and 1382, subdivision (a)(1), remain
unchanged and require the prosecution to file the information
within 15 days after the order of commitment or suffer dismissal.
On the other hand, the time for the superior court to hold an
arraignment hearing is not so clearly established. Section 976,
subdivision (a), only requires a defendant be arraigned “[w]hen
the accusatory pleading is filed . . . .” The word “when” in section
976, subdivision (a), has been interpreted to mean at the same
time as or after an information is filed. (People v. Hale (1957) 156
Cal.App.2d 478, 479–480 (Hale).) California Rules of Court, rule
4.110(2), comports with this interpretation: “The arraignment of
a defendant must be held on the date the information is filed or
as soon thereafter as the court directs[.]” The statutory scheme
establishes two distinct timelines: one for the filing of an
information and another for holding an arraignment. It does not
dictate that a defendant waives his right to a timely-filed
information every time he agrees to an arraignment date that is
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properly scheduled to occur sometime after the information is
filed.5
Neither does Osman v. Superior Court (2005) 134
Cal.App.4th 32, 40 (Osman) support the People’s argument, as
they contend. There, Division One of this District found the
defendant impliedly waived his right to a timely amended
complaint after he failed to object when the trial court gave the
People 33 days to amend, which exceeded the 10-day deadline for
amendment specified in section 1007. The Osman court found
this was error to which the defendant could have objected, but he
did not; he silently acquiesced to a later amendment deadline.
(Ibid.) This case is different. If, as in Osman, the court here had
expressly granted the People 25 days to file an information and
petitioners remained silent, an implied waiver could arguably be
found. But that did not happen; there was no similar mute
acquiescence to a late-filed information.
Petitioners in this case did not waive their right to have the
information filed within 15 days of being held to answer, based on
their agreement to an arraignment outside of that timeframe.
5 The People take issue with the 1999 amendment, arguing,
“The statute cannot condition a speedy trial on arraignment
while simultaneously not providing a speedy arraignment.” They
contend we must harmonize the statutory scheme such that we
read into section 1382 a requirement that the arraignment occur
at the same time the information is filed, requiring us to deviate
from Hale, supra, 156 Cal.App.2d at pages 479–480 and
invalidate rule 4.110(2) of the California Rules of Court.
We decline to do so.
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DISPOSITION
The petitions are granted. The superior court is directed to
vacate its orders denying petitioners’ motions to dismiss
pursuant to section 1382, subdivision (a)(1), and to enter new and
different orders dismissing the actions against petitioners.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
WE CONCUR:
GRIMES, J.
STRATTON, J.
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