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- Dismissal Motions for Violations of Statutory Speedy Trial Rights
- Trial Within 30 or 45 Days
- Penal Code § 1382 sets forth the statutory time rights for the accused to be brought to trial:
- In custody: 30 days from day of arraignment
- Out of custody: 45 days from day of arraignment“
- If a defendant is not ‘brought to trial’ within the time prescribed in section 1382 and...before trial challenges such failure, he is entitled to a dismissal without any showing of prejudice unless good cause justifies the delay.” (Rhinehart v. Municipal Court (1984); People v. Johnson (1980)).” Perryman v. Superior Court (People) (2006)
- The prosecution bears the burden of showing good cause, and the fact that a witness will be on vacation on the date set for trial does not by itself constitute good cause. Baustert v. Superior Court (2005)
- Good cause for a continuance was found in People v. Shane (2004), where the prosecution subpoenaed a witness four days before the date set for trial and the witness was unavailable.
- Effect of Waiver and Subsequent Withdrawal of Waiver
- General time waivers are routinely made on behalf of out-of-custody defendants because it allows defense counsel more flexibility in calendaring matters and a greater opportunity to investigate and prepare a case; however, there may be strategic reasons for not waiving time, or for subsequently withdrawing a time waiver.
- Penal Code § 1382(a)(3)(A) provides that if a general waiver is entered and is later withdrawn, a new 30-day time period (not 45 days) begins to run. Baustert v. Superior Court (People) (2005).
- Penal Code § 1382(a)(3)(A) further specifies that a general time waiver can be withdrawn only “with proper notice to all parties.” In Arias v. Superior Court (People) (2008)
- However, soon after the Arias decision sent a shockwave through California trial courts, P.C. § 1382(a)(3)(A) was amended to mandate that any subsequent withdrawal of time waiver be done “in open court” with notice to all parties.
- Penal Code § 1382(a)(3)(B) provides that a consent, express or implied, to a trial date beyond the applicable 30-or-45-day period requires a trial to begin within 10 days of the end of the period unless the accused makes a general time waiver (i.e., he does not limit his time waiver to the date set for trial).
- Reading PC §§ 1382(a)(3)(A) and (B) together, if there is no general waiver or it is withdrawn, and there is no consent to a date outside of the applicable time period, there is no 10-day period following the 30- or 45-day period. Trial must begin by the 30th or 45th day, or the case shall be dismissed absent a showing of good cause. This was the situation in Arias, supra (defendant having withdrawn his time waiver and there being no good cause for a continuance).
- 10 Days More After 30 or 45; Effect of Waiving
- If the trial does not begin within the appropriate 30- or 45-day time period, it may sometimes be continued or trailed for up to 10 additional days (Stephens v. Municipal Court (1986)
- But note that two cases are in direct conflict about whether or not an objection is necessary to oppose any continuance within the 10-day period (Stephens—Must object and Bryant v. Superior Cour—Objection not necessary).
- Constitutional Speedy Trial Rights
- Constitutional speedy trial rights (U.S. Const., 6th Amendment, Cal. Const., Art. I, § 15) generally relate to the time period between the filing of the charges and the defendant’s arraignment, when statutory rights take over.
- California’s constitutional speedy trial right was the subject of the decision in Serna v. Superior Court.
- Dismissal Motions Based on Prosecutorial Vindictiveness
- “[S]o long as a prosecutor has probable cause to believe the accused has committed a criminal offense…the decision whether or not to prosecute, and what charges to file…generally rests entirely in his discretion.” Bordenkircher v. Hayes (1978).
- However, a “prosecutor violates due process when he seeks additional charges solely to punish a defendant for exercising a constitutional or statutory right.” United States v. Hernandez-Herrera (9th Cir. 2001).
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