PEOPLE v. RAMIREZ

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Lopez RAMIREZ et al., Defendants and Appellants.

G003437.

Decided: October 31, 1986

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Randell L. Wilkinson, Deputy Dist. Attys., for plaintiff and respondent. A. David Tonti, Santa Ana, for defendant and appellant Frank Lopez Ramirez. James A. Stotler, Santa Ana, for defendant and appellant Alice Escobedo Sianez.

The trial court, finding their speedy trial rights had been violated, dismissed felony charges against Frank Ramirez and Alice Sianez.   The prosecution appeals and we reverse.

3

Ramirez and Sianez were charged with felony offenses.   The first information was dismissed after their Penal Code section 995 motion was granted.   A new complaint was filed, a new preliminary examination was held, and a second information was filed in superior court.   Again, the defendants sought dismissal under Penal Code section 995.   That motion was denied and the defendants petitioned for extraordinary relief from this court.

We stayed proceedings in the superior court and then issued an alternative writ.   After oral argument the alternative writ was discharged and the request for peremptory writ denied in an unpublished opinion.  (Sianez v. Superior Court (April 30, 1985) G001855.)   Defendants' petition for review in the Supreme Court was denied on August 19, 1985.   Our remittitur issued September 13, 1985.

Pursuant to a letter from the District Attorney's office, Ramirez and Sianez personally appeared in superior court on September 27, 1985.   Ramirez' attorney of record appeared with both defendants (specially for Sianez because her attorney was unavailable).   Defense counsel announced neither defendant would waive time and both wanted a speedy trial within the statutory time.   The court set the matters for a joint trial on October 28, 1985.   Defense counsel stated that date “would be fine.”   The judge asked whether October 28 was within the statutory time and only the prosecutor answered, replying that it was.

On October 21 the defendants filed a motion to dismiss, contending they were denied a speedy trial.   The October 28 trial date was more than 60 days after the denial of their petition for review in the Supreme Court.   The prosecution responded by arguing the statutory 60–day time period did not begin to run until the remittitur issued on September 13.1  The motion to dismiss was granted on November 1.

An accused is entitled to a speedy trial within 60 days after an information is filed, a mistrial declared, a new trial granted, or a remittitur issued after an appeal reversing an earlier conviction.  (Pen. Code, § 1382, subd. (2).)  There is no specific statutory speedy trial right after pretrial extraordinary writ proceedings.   However, case law has assumed there is nevertheless a right to a speedy trial within 60 days when the case has been returned to superior court after appellate court writ proceedings.  (See Sykes v. Superior Court (1973) 9 Cal.3d 83, 92, 106 Cal.Rptr. 786, 507 P.2d 90;  Pagnini v. Superior Court (1984), 163 Cal.App.3d 142, 145, fn. 2, 209 Cal.Rptr. 208;  Matthews v. Superior Court (1973) 35 Cal.App.3d 589, 595–596, 110 Cal.Rptr. 843.)

In Pagnini, we recognized the question remained as to when the statutory time period begins to run.  (Pagnini v. Superior Court, supra, 163 Cal.App.3d at p. 145, 209 Cal.Rptr. 208.)   Pagnini sought extraordinary writ relief after his Penal Code section 995 motion was denied.   His petition was summarily denied in the appellate court and the Supreme Court denied review.   Pagnini argued his 60–day speedy trial right began to run the date his writ petition was denied in the Court of Appeal;  the prosecution argued it did not begin to run until the Supreme Court denied his request for hearing.   We found no denial of Pagnini's statutory speedy trial right because of his implied waiver of that right, and computed the time from the date the Court of Appeal denied his writ petition.  (Id., at p. 147, 209 Cal.Rptr. 208.)

 Pagnini is not dispositive here, however, because of a significant factual distinction:  Pagnini's writ petition was summarily denied;  here, we issued an alternative writ which was later discharged.   When a writ petition is summarily denied, jurisdiction is immediately revested in the superior court unless the Supreme Court orders otherwise by granting a stay or review.   No remittitur is necessary.  (Cal. Rules of Court, rule 25(a).)   The decision summarily denying the writ petition is final forthwith.  (Cal. Rules of Court, rule 24(a).)   Any accompanying stay order is ordinarily dissolved.   Absent a stay order the superior court retains jurisdiction.   The application for writ, without either a stay order or alternative writ ordering a stay, does not affect the superior court's obligation to protect an accused's statutory speedy trial rights.

 The situation is quite different, regardless of the final outcome of the writ proceedings, when an alternative writ issues.   The writ itself ordinarily, as in this case, orders the lower court proceedings stayed and jurisdiction of the entire cause lies with the appellate court.   Jurisdiction is not revested in the superior court until the remittitur issues.   The alternative writ divests the superior court of jurisdiction, effectively staying all proceedings until final determination of the writ petition.   When the alternative writ is discharged, the remittitur returns the matter to superior court.   Procedurally, however, the remittitur may not issue until “expiration of the period during which review in the Supreme Court may be determined ․”  (Cal. Rules of Court, rule 25(a)), unless otherwise ordered by the Supreme Court or stipulated to by the parties (Cal. Rules of Court, rule 25(b)).

 Because we previously issued an alternative writ, the superior court could not bring Ramirez and Sianez to trial until our remittitur issued.2  The 60–day speedy trial time period therefore began to run when the remittitur issued.

Wilborn v. Superior Court (1959) 175 Cal.App.2d 898, 1 Cal.Rptr. 131 is instructive.   Wilborn sought and obtained an alternative writ as well as a peremptory writ directing the superior court to grant his Penal Code section 995 motion.   The Supreme Court granted a hearing, however, and issued its opinion denying the writ.   Because it was an original proceeding in the Supreme Court a remittitur was not required.  (Id., at p. 900, 1 Cal.Rptr. 131.)   Wilborn eventually had his case dismissed because he was not brought to trial within 60 days of the finality of the Supreme Court decision.   But the critical factor was the trial court's “mistaken belief that it did not have jurisdiction to proceed with the case until a remittitur was filed.”  (Id., at pp. 901–902, 1 Cal.Rptr. 131.)   A remittitur was required here, however, and the trial court had no jurisdiction to try Ramirez and Sianez until that remittitur issued.

The defendants cite Matthews v. Superior Court, supra, 35 Cal.App.3d 589, 110 Cal.Rptr. 843, as authority to conclude they were denied a speedy trial.   Matthews also involved pretrial writ proceedings nearly identical to the instant case.   The Matthews court calculated the time from the date review in the Supreme Court was denied.   That is the date the writ petitions “were ultimately determined adversely” to the party claiming the speedy trial violation.  (Id., at p. 595, 110 Cal.Rptr. 843.)

However, the delay in Matthews was 16 months.   There was no need to focus on the actual date jurisdiction was returned to the superior court.   Thus, there was no discussion of whether or when a remittitur issued.   Here, however, the critical time period is dependent on the ultimate question of when the superior court had the jurisdiction to bring Ramirez and Sianez to trial.   That jurisdiction did not exist until our remittitur issued.   Thus, the defendants' statutory speedy trial right could not commence until September 13, 1985.   The superior court erred in concluding the trial date of October 28 was beyond the 60–day limit and dismissing the case.

Judgment reversed.

FOOTNOTES

1.   Alternatively, the prosecution contended the defendants may not complain about the lack of a speedy trial;  they had not objected at the trial-setting conference to the October 28 date.   In light of our conclusions on the prosecution's first argument, we need not discuss this alternative argument.3

2.   Comparatively, the superior court had jurisdiction to try Pagnini when the Court of Appeal summarily denied his writ petition.

SONENSHINE, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.