Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF147288. Jean P. Leonard, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington J.
I
INTRODUCTION
Defendant Sean Wade Alger appeals from judgment entered following jury convictions for one count of receiving a stolen vehicle, a Toyota (Pen. Code, § 496d, subd. (a) ; count 2) and one count of unlawfully driving or taking a vehicle, a Honda (Veh. Code, § 10851, subd. (a); count 3). Defendant admitted the special allegations of serving two prior prison terms (§ 667.5, subd. (b)) and having a prior conviction under the Three Strikes law (§§ 667, subds. (c) and (e)(1)). The jury found defendant not guilty of counts 1 and 4, unlawfully driving or taking a vehicle (the Toyota) and receiving a stolen vehicle (the Honda) (Veh. Code, § 10851, subd. (a); § 496d, subd. (a)). The court sentenced defendant to eight years in state prison.
All statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the trial court denied him his federal and state constitutional rights to a speedy trial by assigning his case to a judge who had scheduled a two-week vacation midtrial. Defendant also asserts that two $30 fines imposed under Government Code section 70373 must be reversed because the statute was enacted after defendant committed the offenses and should not be applied retroactively.
We conclude defendant’s constitutional right to a speedy trial was not violated and the trial court properly imposed the two $30 fines under Government Code section 70373. The judgment is affirmed.
II
FACTS
Because the details of defendant’s criminal conduct are not relevant to the issues raised in this appeal, we will only briefly recount the facts.
On March 20, 2008, Carlos Quintero saw defendant enter Rafael Licona’s Toyota Previa minivan and drive away. Defendant did not have permission to take Licona’s minivan. Three days later, Licona’s minivan was recovered, with damage to the ignition.
On March 22, 2008, Angelica Diaz (Diaz) left her Honda Civic at a Wal-Mart for an oil change. Defendant rode his bicycle to the Wal-Mart and requested the keys to Diaz’s car, claiming it was his own car. He complained the service was taking too long and said he had to leave immediately or he would be late to work. After defendant was handed the keys to Diaz’s car, defendant put his bicycle in the trunk and drove off in the car. When Diaz returned to Wal-Mart, she discovered her car had been stolen. Her car, which was damaged, was recovered three days later.
III
DEFENDANT’S RIGHT TO A SPEEDY TRIAL
Defendant contends the trial court violated his right to a speedy trial by assigning his case to a judge who planned to take a two-week vacation midtrial. We disagree. Even though the court took a recess during the trial, there was no violation of defendant’s constitutional right to a speedy trial
A. Procedural Background
On August 21, 2009, defendant was arraigned on the information, triggering speedy-trial time constraints. Defendant moved several times to continue the trial beyond the 60-day speedy trial time limit, and agreed to extending the last day for trial to December 14, 2009. The court ordered the trial continued to December 2, 2009, and pursuant to the parties’ stipulation, ordered the last day for trial on December 14, 2009.
On December 2, 2009, the master calendar judge, Edward D. Webster, granted the People’s motion to trail the trial to December 14, 2009.
On Monday morning, December 14, 2009, the parties announced ready for trial and defense counsel objected to any further delay. Judge Webster informed the parties that Judge Schwartz would be available to try the case the following day and therefore asked if defendant would be willing to waive his right to a speedy trial for one day and agree to begin the trial on December 15, 2009. Defendant would not agree to a one-day waiver. Judge Webster ordered the parties to return to his courtroom that afternoon at 1:30 p.m.
Upon returning at 1:30 p.m., Judge Webster assigned the case to Judge Leonard for trial. At approximately 2:00 p.m., Judge Leonard held a pretrial conference, during which she informed counsel that defendant’s trial would begin that afternoon with jury voir dire, but her courtroom would be dark from December 21, 2009, until Monday, January 4, 2010, while she was on vacation.
Citing Rhinehart v. Municipal Court (1984) 35 Cal.3d 772 (Rhinehart), defense counsel objected to Judge Leonard trying the case, since she would be taking a two-week vacation midtrial. Defense counsel argued that defendant’s right to a speedy trial was violated because December 14, 2009, was the last day to try the case, and Judge Leonard, in effect, was not available to try the case until January 4, 2010.
Judge Leonard refused to send the case back to the master calendar judge since he was already aware of her vacation, which she scheduled many months earlier. Judge Leonard added she was ready, willing, and able to begin defendant’s trial that day, beginning with the selection of a jury. She anticipated the jury would be selected by the end of the week.
Judge Leonard explained her courtroom had become available that day, after defendants in another case entered pleas in the case, freeing her courtroom at noon for trying another case. She was then assigned defendant’s case. Judge Leonard’s courtroom was the only courtroom available to try the case that day. Judge Leonard concluded there would be no prejudice in taking a midtrial recess for her vacation since the recess was relatively short. Defendant’s motion to dismiss based on violation of his right to a speedy trial was calendared for the following morning. Jury voir dire began during the afternoon of December 14, 2009.
On December 15, 2009, the court heard defendant’s motion to dismiss under section 1382, on the ground defendant’s speedy trial rights were violated. The People opposed the motion, arguing that defendant’s right to a speedy trial was not violated since his trial began on December 14, 2009, with the swearing in of a jury panel. The midtrial delay while Judge Leonard was on vacation was short. Only eight court days would be missed. Two days were court holidays (Christmas and New Years day). Unlike in Rhinehart, supra, 35 Cal.3d 772, the court was not simultaneously trying another case. Rather, in the instant case, the court devoted all its attention to trying defendant’s case until Judge Leonard went on vacation for two weeks.
Judge Leonard denied defendant’s motion to dismiss and his request to stay the case while petitioning for writ relief. This court summarily denied defendant’s writ petition challenging the trial court order denying defendant’s motion to dismiss (case No. E049901).
Jury selection resumed on December 15, 2009, and concluded that same day. The following day was a court furlough, with the courthouse closed. Defendant’s trial resumed on Thursday, December 17, 2009. The parties gave opening statements and three prosecution witnesses testified. The case was not tried on Friday, December 18, 2009, because Fridays generally were reserved for handling court administrative matters.
The court was in recess for two weeks during Judge Leonard’s vacation and resumed the trial on Monday, January 4, 2010. On January 4, 2010, defendant brought a motion for mistrial, again arguing his right to a speedy trial was violated by the two-week interruption in his trial. Defendant argued the long delay midtrial was inherently prejudicial because the jurors were subjected to outside influences and extended focus on the prosecutor’s case.
Judge Leonard concluded defendant was not prejudiced by the delay, particularly since, at the inception of the trial, the jurors were fully informed of the need to take a two-week break during the holiday season. The court noted it immediately began defendant’s trial when the courtroom became available, even though Judge Leonard was going on vacation midtrial, because it was the only courtroom available and delaying the trial until her return from vacation would have wasted two and a half days of valuable court time. The court added that arguably the People, rather than defendant, were prejudiced by the two-week recess after they put on their case.
The court denied defendant’s motion for mistrial and request for a stay of the trial while he petitioned the California Supreme Court for review of this court’s denial of his petition for writ relief. The Supreme Court denied defendant’s petition for review.
The trial resumed on January 4, 2010, with the prosecution and defense resting on January 5, 2010, the jury commencing deliberations on January 5, 2010, and the jury returning a verdict on January 7, 2010.
B. Applicable Law
Defendant’s right to a speedy trial is a fundamental right. “It is guaranteed by the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The Legislature has also provided for ‘“a speedy and public” trial as one of the fundamental rights preserved to a defendant in a criminal action. (§ 686, subd. 1.)’ [Citation.] To implement an accused’s constitutional right to a speedy trial, the Legislature enacted section 1382. [Citation.]” (Rhinehart, supra, 35 Cal.3d at p. 776.)
Section 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 [the prescribed period] is prima facie in violation of a defendant’s constitutional right.’ [Citation.] Thus, an accused is entitled to a dismissal if he is ‘brought to trial’ beyond the time fixed in section 1382. [Citation.]” (Rhinehart, supra, 35 Cal.3d at p. 776.)
Under section 1382, subdivision (a)(2), a defendant accused of a felony must be brought to trial within 60 days of arraignment on an information. If the defendant requests or consents to trying the case beyond the 60-day period, the defendant must be brought to trial on the date set for trial or within 10 days thereafter. (§ 1382, subd. (a)(2).)
Here, defendant agreed to continue the trial to December 2, 2009. In conformity with section 1382, the parties further agreed the last day to try the case was December 14, 2009. Since the 10th day after December 2, 2009, was a Saturday, the 10-day period to try the case under section 1382 was extended to Monday, December 14, 2009. (Code Civ. Proc., §§ 10, 12, 135; Cal. Rules of Court, rule 1.10(a).)
C. Discussion
Even though defendant’s trial began on December 14, 2009, before expiration of the statutory period to try the case under section 1382, defendant argues that, in effect, he was not brought to trial on December 14, 2009, because this was the last day to begin the trial and the court knew the trial would be interrupted during the judge’s two-week vacation, from December 21, 2009, to January 4, 2010. The trial courtroom was dark for eight court days during this trial recess. Citing Rhinehart, supra, 35 Cal.3d at p. 780, defendant claims this demonstrated that the court was not prepared to devote its resources to trying defendant’s case and therefore defendant was deprived of his right to a speedy trial.
In addressing the issue of what “is meant by the words ‘brought to trial’ in section 1382, ” the court in Rhinehart noted “‘There is no talismanic phrase which can be used to describe the precise point at which an individual has been “brought to trial.”’” (Rhinehart, supra, 35 Cal.3d at p. 777.) The court further concluded that merely impaneling a jury on the last day to try the case, with no intention of actually trying the case immediately thereafter, was not sufficient to satisfy the defendant’s right to a speedy trial. (Id. at p. 779.)
According to Rhinehart, a defendant is brought to trial within the meaning of section 1382 “when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion.[] The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.[]” (Rhinehart, supra, 35 Cal.3d at p. 780.) The Rhinehart court noted that the swearing of a panel of prospective jurors constitutes bringing a case to trial under section 1382 “‘so long as the panel is sworn in as a good faith start to the jury selection process and not as a mere device to avoid the impact of the statute.’” (Rhinehart, at pp. 777-778, quoting People v. Amati (1976)63 Cal.App.3d Supp. 10, 11.) “Whether the trial court acted in good faith must be ‘objectively determined.’ [Citation.] Where ‘the record objectively shows that a case is assigned for trial to a judge who is available to try the case and the court has committed its resources to the trial, the parties answer ready and a panel of prospective jurors is summoned and sworn, the trial process has commenced and defendant has been “brought to trial” as that term is used in Penal Code section 1382.’ [Citation.]” (Rhinehart, at p. 778, quoting Sanchez v. Municipal Court (1979) 97 Cal.App.3d 806, 811-813.)
In Rhinehart the court concluded that merely selecting a jury was not sufficient under section 1382 because the trial court did not intend to proceed immediately with trying the case. (Rhinehart, supra, 35 Cal.3d 772 at p. 780.) The trial judge had stated that the only reason for impaneling a jury was to avoid a dismissal under section 1382, and then resumed trying another case. (Id. at p. 775.) As a consequence, the court in Rhinehart held that, although the trial court impaneled a jury on the last day to try the case, the court did not, in effect, bring the case to trial at that time because it did not commit its resources to the trial: “Under this test, it cannot be said that Mr. Rhinehart was ‘brought to trial’ within the meaning of section 1382. The trial judge indicated that the jury was impaneled solely to avoid a dismissal under section 1382. Moreover, the court was not available or ready to try the case to conclusion. The trial judge interrupted the trial in another case to conduct jury selection.... The next court day... the case was not reconvened at that time. It was continued.... Thus, Mr. Rhinehart was not ‘brought to trial’ within the meaning of section 1382.” (Id. at p. 780.)
The instant case is distinguishable from Rhinehart in that, here, there is no showing that the trial court impaneled the jury for the sole purpose of avoiding a dismissal, and then continued the trial proceedings and resumed trying another case already in progress. (Rhinehart, supra, 35 Cal.3d at pp. 775-776, 780.) Although in the instant case, it was understood at the beginning of the trial that Judge Leonard would be taking her preplanned vacation midtrial, the record does not show the trial court intentionally circumvented section 1382 time restrictions. There is no indication here that any bad faith was involved. (Id. at p. 778, quoting People v. Amati, supra, 63 Cal.App.3d Supp. at p. 11.)
During the time Judge Leonard was available to try the case, the court resources were devoted entirely to defendant’s case. From December 14, 2009, until Judge Leonard left on her vacation, the court heard motions in limine, completed voir dire, and gave preliminary jury instructions. Both parties then gave opening statements and three of the prosecution’s witnesses testified. In addition, the court discussed with counsel the jury instructions to be given at the end of the trial. During the initial two and a half days of the trial, before the court recessed, a significant portion of the trial was completed, with the remainder of the trial conducted immediately upon Judge Leonard’s return.
The record also shows there was no alternative courtroom available on December 14, 2009. Defendant had already refused to waive his speedy trial rights for one day so that his case could be assigned to another courtroom that was expected to become available the following day.
Under such circumstances there was no violation of defendant’s speedy trial rights. Commencement of the trial on December 14, 2009, was not a mere subterfuge used deceptively to deprive defendant of his speedy trial rights while giving the appearance of compliance with section 1382 time restrictions. This was not an “imaginative way[] to avoid the clear intent of the Legislature, ” in enacting section 1382 to ensure an accused’s constitutional right to a speedy trial. (Rhinehart, supra, 35 Cal.3d atp. 779.)
Defendant’s reliance on People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 20-21 (Engleman), People v. Santamaria (1991) 229 Cal.App.3d 269, 281-282, United States v. Hay (9th Cir. 1997) 122 F.3d 1233, is misplaced since these cases are factually distinguishable and do not address the issue of whether there was a violation of the defendant’s right to a speedy trial. Rather, the cases concern the issues of whether the trial court abused its discretion in granting a trial continuance midtrial, whether the continuance violated the defendant’s due process rights and right to a fair trial, and whether the continuance constituted prejudicial error. Furthermore, Engleman is a superior court appellate division opinion and United States v. Hay is a federal decision, both of which are not binding authority on this court.
The recent decision, People v. Engram (2010) 50 Cal.4th 1131, which defendant cites in his appellate reply brief, is also not on point. In Engram, on appeal, the People challenged the trial court’s dismissal of the case under section 1382 solely on the ground that the trial court should have transferred the criminal case for trial to any available judge assigned to a civil courtroom, since there were no criminal courtrooms available. Because the unavailability of a criminal courtroom resulted from chronic court congestion attributable to the state, the trial court concluded good cause did not exist under section 1382 for the delay in bringing the case to trial within the statutory period. The California Supreme Court in Engram thus concluded the trial court did not abuse its discretion in dismissing the proceedings. (Engram, at p. 1138.)
In the instant case, defendant’s case was not dismissed due to chronic court congestion. Instead, here, a courtroom was available to try defendant’s case and, unlike in Engram, defendant’s case was brought to trial in conformity with section 1382. The issue in the instant case does not concern whether the delay in bringing defendant’s case to trial due to chronic court congestion, constituted good cause under section 1382.
Since defendant’s case was brought to trial on the last day to try the case within the meaning of section 1382, the trial court did not violate defendant’s federal and state constitutional rights to a speedy trial. The midtrial interruption does not support a contrary conclusion.
IV
APPLICATION OF GOVERNMENT CODE SECTION 70373
Defendant contends that the trial court’s sentencing order, imposing two $30 fines under Government Code section 70373, must be reversed because the statute was enacted after he committed the offenses and cannot be applied retroactively. Defendant did not raise this objection in the trial court during sentencing.
Defendant committed the charged crimes in March 2008, and was convicted in January 2010 of receiving a stolen vehicle and auto theft. Government Code section 70373 was enacted on September 26, 2008, and went into effect in January 2009. It provides in relevant part: “(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses... involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” (Italics added.)
Government Code section 70373 does not expressly state that it is to apply retroactively. Defendant argues the language in this provision, stating the assessment “shall be imposed on every conviction for a criminal offense, ” does not require retroactive application. To impose the assessment retroactively, defendant argues, violates the presumption under section 3 that statutes operate prospectively unless stated otherwise in the statute or by the Legislature or voters.
Defendant acknowledges that in People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5-6, the court held that Government Code section 70373 does not violate ex post facto prohibitions since it is nonpunitive. The court in Brooks did not consider whether the statute could be applied retroactively. Defendant further acknowledges that the court in People v. Castillo (2010) 182 Cal.App.4th 1410 (Castillo), held that imposing a Government Code section 70373 assessment to a crime committed before the statute’s enactment does not violate the presumption that statutes operate prospectively. Nevertheless, defendant argues that Castillo was wrongly decided and urges this court to reject Castillo and hold that Government Code section 70373 cannot be applied retroactively, since the provision does not expressly indicate it is to be applied retroactively and there are no extrinsic sources establishing an intent to apply the statute retroactively.
But, as the People note, the trial court did not retroactively apply Government Code section 70373. The provision states the Government Code section 70373 assessment shall be “imposed on every conviction.” (Gov. Code, § 70373, subd. (a)(1).) As in Castillo, even though defendant committed the crimes before the provision went into effect, defendant’s convictions and sentencing occurred afterwards.
The Castillo court never addressed the issue of whether the provision could be applied retroactively, and this court need not either, since the provision was applied prospectively to defendant’s convictions. The court in Castillo, supra, 182 Cal.App.4th at page 1414, explained: “The assessment is ‘imposed on every conviction’ as defined. (§ 70373, subd. (a)(1).) Defendant’s conviction occurred after the statute’s effective date. The fact that defendant’s conviction flowed from antecedent criminal conduct is not addressed by the statute.”
In reaching this conclusion, the Castillo court noted that “The California Supreme Court reached a similar conclusion regarding an analogous statute. In People v. Alford (2007) 42 Cal.4th 749 (Alford), a statute effective after Alford’s crime imposed a court security fee on every conviction. (See Pen. Code, § 1465.8.) Because the statute was part of a budgeting bill, the court concluded that ‘the Legislature intended to impose the court security fee to all convictions after its operative date.’ (Alford, supra, 42 Cal.4th at p. 754.)” (Castillo, supra, 182 Cal.App.4th at p. 1414.)
While defendant urges this court to reject Castillo as not well reasoned, we conclude Castillo’s analysis is sound and we thus adhere to its holding, as have several other courts, including People v. Phillips (2010) 186 Cal.App.4th 475, 479; People v. Knightben (2010) 186 Cal.App.4th 1105, 1111-1112; People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1494; and People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001. As explained in Phillips, at page 479, Government Code section 70373 is part of a budgetary enactment that “supports application of the assessment to convictions regardless of the date of the underlying offense. [Citation.] The assessment ‘is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. [Citations.]’ [Citation.] Similarly, the court security fee considered in Alford was enacted as part of a larger budgetary measure. [Citation.]”
We thus reject defendant’s contention the trial court applied Government Code section 70373 retroactively, we conclude the trial court properly applied the provision prospectively, since the court imposed the Government Code section 70373 fees on convictions occurring after the statute was enacted and took effect.
V
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P. J., Hollenhorst J.