People v. Davisbragdon

Filed 8/9/23
CERTIFIED FOR PUBLICATION
APPELLATE DIVISION
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
THE PEOPLE, 30-2022-01248296
Plaintiff and Respondent, (Super. Ct. No. 21NM14212)
v. OPINION
JAMES DAVISBRAGDON,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, North
Justice Center, James Rogan and Jeremy Dolnick, Judges. Reversed.
Martin Schwarz, Public Defender, Adam Vining, Assistant Public
Defender, and Shawn McDonald, Deputy Public Defender, for Defendant and
Appellant.
Todd Spitzer, District Attorney, and Thomas Collins, Deputy District
Attorney, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant James Davisbragdon of violating a
protective order (Pen. Code,1 § 166, subd. (c)(1)). He contends the trial court
violated his right to a speedy trial. We agree and reverse.
1 All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2021, the People charged defendant with inflicting
corporal injury in violation of section 273.5, subdivision (a) (count 1), and
violating a protective order in violation of section 166, subdivision (c)(1)
(count 2). On December 2, 2021, while in custody, defendant pleaded not
guilty to both counts and did not waive time for trial.
On January 3, 2022 (the last day for trial under section 1382 without a
time waiver), defendant remained in custody but was not transported to court
because he had recently tested positive for COVID-19 and was not yet
medically cleared for transport. Dr. C. Chiang, the Medical Director of
Correctional Health Services, submitted a declaration stating that if
defendant was asymptomatic on January 7, he could be transported to court
on January 10. The trial court found good cause to set the case for trial on
January 10, 2022.
On January 10, the People and defendant answered ready for trial.
Defendant remained in custody but was not transported to court. The trial
court (Judge James Rogan) noted defendant was medically cleared for
transport to court, but stated it was too late in the day to obtain a jury panel
and transport defendant to court as it was approximately 11:30 a.m. Over
defendant’s objection, the court found good cause to continue the trial to
January 11, 2022. Defendant moved to dismiss the case under section 1382,
and the court stated it would entertain that motion on January 11. The court
granted the People’s motion to dismiss count 1.
On January 11, 2022, defendant remained in custody and was
transported to court. He again moved to dismiss the case pursuant to section
1382. The trial court (Judge Jeremy Dolnick) denied the motion and the case
proceeded to trial on count 2. The jury found defendant guilty.
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DISCUSSION
Defendant argues his statutory right to a speedy trial was violated
when the trial court continued his jury trial from January 10 to January 11
without good cause. The People do not claim there was good cause for the
continuance, and rightfully so. (See Jackson v. Superior Court (1991) 230
Cal.App.3d 1391, 1394 [sheriff’s failure to timely transport defendant to court
is not good cause for continuance]; People v. Cole (2008) 165 Cal.App.4th
Supp. 1, 16-17 [lack of available courtrooms due to court congestion is not
good cause for continuance].)
Instead, the People argue the conviction should be affirmed because
defendant has not established prejudice from the delay. Defendant asserts
he need not show prejudice because this misdemeanor case could not be
refiled if dismissed under section 1382. After reviewing the relevant
statutory and decisional authority, we hold that on appeal a defendant must
establish prejudice from the denial of his statutory right to a speedy trial. In
this misdemeanor case, where defendant was convicted after trial, and where
none of the exceptions in section 1387 would permit the case to be refiled,
defendant has established prejudice.
As noted, there is no dispute that defendant’s right to a speedy trial
under section 1382 was violated when the trial court continued the trial from
January 10 to January 11 without good cause. The general rule under
section 1387 prohibits a misdemeanor from being refiled if it is dismissed
pursuant to section 1382. (§ 1387, subd. (a).) There are exceptions to this
general rule; most of them apply to domestic violence cases. (§ 1387, subds.
(a)(1)-(4) & (b).) Although the People charged defendant with domestic
violence crimes, none of the exceptions in section 1387 apply because both
sides answered ready for trial.
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If this case was before us on a pretrial writ, there is no question that
defendant would be entitled to relief because a defendant may seek pretrial
writ review of the denial of a statutory speedy trial without demonstrating
prejudice. (People v. Egbert (1997) 59 Cal.App.4th 503, 512.) But after a
conviction, a defendant must demonstrate a statutory speedy trial violation
and “prejudice flowing from that delay.” (Ibid.)
This point is illustrated in People v. Wilson (1963) 60 Cal.2d 139. In
Wilson, the trial court continued the defendant’s trial without good cause and
over his objection. The defendant appealed, claiming the erroneous denial of
his statutory speedy trial right required reversal even in the absence of
prejudice. The court agreed the defendant’s statutory speedy trial right was
violated. (Id. at p. 145.) And prior to the commencement of the trial, the
defendant did not need to show prejudice to obtain relief. (Id. at p. 151.) But
on appeal, “[t]he charges are no longer pending against defendant; the delay
has ended, and [defendant] has been duly tried and convicted. It is, very
simply, too late for defendant to seek to be relieved of a delay that no longer
exists.” (Ibid.) And although the defendant can seek appellate review, on
appeal he must “show that the error was a prejudicial one.” (Id. at p. 152.)
Such a standard comports with the California Constitution, which prohibits a
judgment from being set aside unless an error results in a miscarriage of
justice. (Ibid., citing Cal. Const., art. VI, § 4 1/2 (now Cal. Const., art. VI, §
13).)
But the Wilson court also observed that situations exist where the
denial of a speedy trial motion to dismiss is prejudicial and relief can be
obtained on that basis on appeal. (Id. at pp. 152-153.) For example, if the
statute of limitations would have barred a new prosecution if the motion to
dismiss was granted, the erroneous denial of the motion would prejudice the
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defendant. (Ibid.) And as relevant here, “[I]n a misdemeanor prosecution the
erroneous denial of such a motion to dismiss would be rendered prejudicial by
Penal Code section 1387, which provides in pertinent part that an order of
dismissal (under § 1382) ‘is a bar to any other prosecution for the same
offense if it is a misdemeanor. . . .’ [Citation.]” (People v. Wilson, supra, 60
Cal.2d at p. 153, fn. 5.)
Since Wilson, with one exception discussed below, appellate courts have
consistently held that a defendant must establish prejudice on appeal to
obtain relief for a speedy trial violation. (People v. Johnson (1980) 26 Cal.3d
557, 574-575 [statutory speedy trial violation requires showing of prejudice
on appeal]; People v. Martinez (2000) 22 Cal.4th 750, 769 [prejudice is
required for statutory speedy trial claim on appeal]; People v. Giron-Chamul
(2016) 245 Cal.App.4th 932, 956 [on appeal defendant must demonstrate
prejudice from denial of statutory speedy trial right].)
The exception to these holdings is Avila v. Municipal Court (1983) 148
Cal.App.3d 807. The case has an unusual procedural history that is not
relevant to this appeal. But the holding of the case is that a misdemeanor
defendant may appeal the denial of his statutory right to a speedy trial after
pleading guilty. (Id. at p. 812.) The court noted that a felony conviction will
be reversed on appeal only if the defendant suffered prejudice as a result of
the speedy trial violation. (Ibid.) As such, a felony defendant who pleads
guilty cannot appeal because his guilty plea precludes any showing of
prejudice. (Ibid.) “The impact of a Penal Code section 1382 violation on the
prosecution of a misdemeanor is, however, quite different. When a felony is
dismissed pursuant to section 1382, the prosecution may refile the same
charge. Once a misdemeanor has been dismissed pursuant to section 1382, it
cannot be filed again. This distinction leads to a different standard of
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appellate review of speedy trial issues for misdemeanors; a section 1382 error
requires reversal and dismissal of a misdemeanor without any showing of
prejudice [citations] ….” (Ibid.)
Defendant relies on this dicta from Avila to support his claim that he
need not establish prejudice. But as the People point out, this dicta and the
holding of Avila have been criticized by other appellate courts. In People v.
Hernandez (1992) 6 Cal.App.4th 1355, the defendant pleaded guilty to a
felony after his motion to dismiss based on a claimed constitutional speedy
trial violation was denied. Defendant challenged the denial of that motion on
appeal. The court disagreed with Avila, and held that a speedy trial violation
does not survive a guilty plea. (Id. at pp. 1357-1358.) The court also
criticized Avila’s analysis of prejudice, noting “[t]he reasoning of Avila would
permit a defendant to raise any issue on appeal after a plea of guilty, by
arguing that, had his motion been granted, he could not have been
successfully prosecuted at any time. We think the absurdity of such a
position is obvious . . . .” (Id. at p. 1360.)
Avila faced similar criticism in People v. Egbert, supra, 59 Cal.App.4th
503. There the court disagreed with Avila and held that a claimed speedy
trial violation, statutory or constitutional, does not survive a guilty plea in
misdemeanor prosecutions. (Id. at p. 506.) In so holding, the court found
that Avila “erroneously assume[d] when a felony is dismissed for violation of
section 1382, the prosecution may refile the same charge, but when a
misdemeanor is dismissed under that provision, the same charge cannot be
refiled. The court then uses this distinction to conclude a misdemeanor
defendant is automatically prejudiced by the denial of a statutory dismissal
motion. In our view, the dismissal statutes are not so clear cut. Further,
appellate review of a statutory speedy trial issue requires consideration of the
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type of prejudice arising from the delay in prosecution, not the prejudicial
effect caused by the denial of the motion itself.” (Id. at pp. 513-514.)
Finally, in People v. Aguilar (1998) 61 Cal.App.4th 615, the defendant
was charged with a misdemeanor, her constitutional speedy trial motion was
denied, and she pleaded no contest. She appealed and the court held that the
denial of a speedy trial motion is not appealable when the defendant pleads
no contest. (Id. at p. 617.) The court also criticized Avila’s prejudice analysis,
finding it “rests upon a misperception of the concept of prejudice.” (Id. at p.
620.)
Read together, these cases demonstrate that both parties are incorrect.
Contrary to defendant’s claim, prejudice is required on appeal from the denial
of a statutory speedy trial motion in a misdemeanor case. (People v. Egbert,
supra, 59 Cal.App.4th at p. 512.) And contrary to the People’s claim, section
1387’s prohibition against refiling a case can establish that prejudice in
certain misdemeanor cases. (People v. Wilson, supra, 60 Cal.2nd at p. 153, fn.
5.) All of the cases the People cite hold that a defendant may not appeal the
denial of a speedy trial motion (whether statutory or constitutional) in a
misdemeanor case following a guilty plea because the defendant’s guilty plea
eliminates any possible prejudice to the defendant caused by the delay.
(People v. Hernandez, supra, 6 Cal.App.4th at pp. 1357-1360 [constitutional];
People v. Aguilar, supra, 61 Cal.App.4th at pp. 621-622 [constitutional];
People v. Egbert, supra, 59 Cal.App.4th at p. 515 [both].)
But those cases do not stand for the proposition that section 1387’s
prohibition against refiling certain misdemeanor cases cannot establish
prejudice on appeal when the defendant is convicted at trial. In Wilson, in
addition to the statute of limitations example, the court stated that the
erroneous denial of a statutory speedy trial motion is rendered prejudicial by
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section 1387. (People v. Wilson, supra, 60 Cal.2nd at p. 153, fn. 5.) Almost 20
years later, the court reaffirmed that concept in Johnson. In discussing
Wilson and why the Johnson defendant must show prejudice on appeal from
a section 1382 violation, the court noted “[t]his is not a case in which the
statute of limitations would have been a bar to new charges, or one in which
a dismissal would itself have barred refiling.” (Id. at p. 574.) In People v.
George (1983) 144 Cal.App.3d 956, after trial the defendant claimed a
violation of her speedy trial right under section 1381.5. The court affirmed,
finding no prejudice because “the denial of the motion [to dismiss] occurred
within one year of the robbery’s commission, well within the applicable
statute of limitations [citation], and hence dismissal would have been no bar
to refiling. We note that dismissal of the information might also have been
prejudicial had there been a prior dismissal on speedy trial grounds (§ 1387;
[citation]), but here there was no such prior dismissal.” (People v. George,
supra, 144 Cal.App.3d at pp. 959-960.) The court applied the same rationale
in People v. Cory (1984) 157 Cal.App.3d 1094, 1101, where the court found
the defendant’s statutory speedy trial right had been violated. But the
defendant could not establish prejudice because “this is not a case in which
pretrial dismissal would have barred further prosecution by reason of either
section 1387 or the statute of limitations.” (Ibid.) And in Aguilar, in
discussing the prejudice requirement on appeal for a misdemeanor, the court
observed, “If the [speedy trial] motion is denied, and the reviewing court
deems the denial was in error, the error is inherently prejudicial because a
grant of the motion would have barred further prosecution in most
circumstances. [Citations.]” (People v. Aguilar, supra, 61 Cal.App.4th at p.
622.)
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Here, defendant’s statutory right to a speedy trial was violated when
the trial court continued the trial over his objection and without good cause.
Defendant did not plead guilty; instead he went to trial and was convicted.
As such, he can appeal the denial of his statutory speedy trial motion. But on
appeal, defendant must show prejudice. He has established prejudice
because if the case had been dismissed under section 1382 as it should have
been, it could not have been refiled because none of the exceptions from
section 1387 apply.
DISPOSITION
The judgment is reversed.
Scott Van Camp
Judge
WE CONCUR:
Melissa R. McCormick
Presiding Judge
Robert A. Knox
Judge
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