PEOPLE v. GLORIA (1988)

In this proceeding, we reconsider our decision in Brown v. Superior Court (1987) 189 Cal.App.3d 260, 234 Cal.Rptr. 416, and hold that a declaration executed upon information and belief is sufficient to support a motion for continuance of a criminal trial pursuant to Penal Code section 1050.

In Brown and its companion cases, we upheld the dismissals of three misdemeanor cases because the People had not demonstrated good cause for continuing the defendants' trials beyond the statutory time limits of Penal Code section 1382.¹  Specifically, we criticized the Office of the Los Angeles City Attorney for (1) waiting until the date set for trial to subpoena the arresting officer, only to find that the officer was unavailable to testify on the scheduled trial date, and (2) submitting in support of its motions declarations with several evidentiary defects.   Our concern in Brown was that this approach undermined the efficiency of the municipal courts and invited otherwise avoidable defense motions to dismiss.

In this case, we had the opportunity to observe the Brown decision at work, and we concluded that Brown should be reconsidered.   Accordingly, we transferred the case to this court pursuant to rule 62(a), California Rules of Court.

FACTS

Appellant was charged with driving under the influence of drugs (Veh. Code, § 23152, subd. (a)), having previously been convicted of violating that section, and with being under the influence of PCP (Health & Saf.Code, § 11550.)   Trial was originally set for November 25, 1986, but was continued on defense motion to December 2, 1986 and, once again on defense motion, to December 5, 1986.

On December 3, 1986, two days prior to trial, the People filed a written motion to continue the trial based upon the illness of the arresting officer, Officer Lindermeier.   Attached to the motion were two declarations:  one from the prosecutor and one from Los Angeles Police Department court liaison officer Craig M. Hrehor.   In her declaration, the prosecutor stated that she had spoken to Los Angeles Police Department subpoena control officer Ledesma, who told her that Officer Lindermeier had been hospitalized on November 7, 1986, had undergone an appendectomy complicated by peritonitis, and was not expected to return to duty until January 3, 1987.   The prosecutor further declared that she had reviewed the police report and determined that Officer Lindermeier was a witness whose testimony would be “material, relevant and noncumulative,” because he was the arresting officer, had administered a breath test to appellant, and was a certified drug recognition expert who conducted appellant's drug evaluation.

Officer Hrehor's declaration, executed on information and belief on a pre-printed form, stated that Officer Lindermeier had suffered a ruptured appendix, was hospitalized for six days, and was “presently immobile.”

The People's motion was heard on the last day on which the case could be tried without being dismissed pursuant to Penal Code section 1382.   At the hearing, the defense argued (1) the People had not demonstrated due diligence in attempting to subpoena the officer at an earlier date, and (2) “everything we know with regard to the physical condition of the officer is hearsay.”   The municipal court, finding good cause for the continuance, granted the People's motion, noting that it would have granted a similar request by the defense on the same facts.   The court continued the trial to January 5, 1987.

Appellant filed a motion to dismiss (Penal Code, § 1382), which was heard and denied by the municipal court on December 8, 1986.

On January 5, 1987, appellant entered a guilty plea to one count of driving under the influence (Veh. Code, § 23152, subd. (a)).  He was placed on 36 months summary probation on the terms, among others, that he serve 60 days in county jail, pay a fine of $390, and attend an alcohol rehabilitation program.

Relying upon Brown, the Appellate Department of the Superior Court reversed appellant's conviction holding that the People had not shown good cause for delaying appellant's trial beyond the time limits set forth in Penal Code section 1382.   Specifically, the court stated that the declarations provided in support of the People's motion were hearsay and therefore “not competent evidence to establish the ‘facts' contained therein.”  (Brown, supra, 189 Cal.App.3d at p. 265, 234 Cal.Rptr. 416.)

The Appellate Department further suggested that had the People attempted to subpoena Officer Lindermeier at the time the trial date was set, rather than two days before trial, they would have discovered the fact of Officer Lindermeier's illness in time to obtain such “competent evidence” in the form of a declaration from the officer or his treating physician.

 Because the Appellate Department's holding was supported by certain language in Brown, it has led us to reexamine that case.   Although Brown stated that a declaration on information and belief is “not competent evidence to establish the ‘facts' contained therein [citing a civil case]” (189 Cal.App.3d at p. 265, 234 Cal.Rptr. 416), Brown did not disapprove the use of facts obtained by the court liaison officer such as “the dates of the absent officer's vacation and the date of his return.”  (Id.)  The declaration in Brown was criticized primarily because it gave no details of efforts to serve the absent witness and because the materiality of the witness should have been shown by the prosecutor instead of by the court liaison officer's information and belief.  (Id. at pp. 264–265, 234 Cal.Rptr. 416.)   Those defects are not present in the instant case.   As the municipal court recognized, the People were entitled to a continuance because they presented demonstrably reliable evidence that the arresting officer was incapacitated and unable to testify.   That fact was not really in question.   In appellant's view (echoed by the Appellate Department), the only way the People could have shown good cause would have been to submit personal declarations from the indisposed Officer Lindermeier and/or his treating physician.   Such a requirement would impose upon the People a burden which they should not be required to meet on a motion for continuance under Penal Code section 1050.   We therefore hold that such a motion may be supported by declarations containing hearsay evidence, if such evidence contains “reasonable indicia of reliability” and “bears a substantial guarantee of trustworthiness.”   (People v. Maki (1985) 39 Cal.3d 707, 715, 217 Cal.Rptr. 676, 704 P.2d 743.) ²

DISCUSSION

As the United States Supreme Court has recognized, “not all situations calling for procedural safeguards call for the same kind of procedure.”   (Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.)   Unlike an adversary criminal trial, where the defendant is entitled to a full panoply of procedural rights (including strict adherence to evidentiary rules), less formal criminal proceedings (in Morrissey, a parole revocation hearing) involve a more “narrow inquiry,” and “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”  (Id. at p. 489, 92 S.Ct. at p. 2604.)   The use of hearsay evidence at such a proceeding is not per se unconstitutional (Egerstaffer v. Israel (7th Cir.1984) 726 F.2d 1231, 1234), “but its substance must be treated with care.”  (Maki, supra, 39 Cal.3d at p. 716, 217 Cal.Rptr. 676, 704 P.2d 743.)   The inquiry is whether the evidence sought to be admitted is “accompanied by reasonable indicia of reliability” and “bears a substantial guarantee of trustworthiness.”   (People v. Maki, supra, 39 Cal.3d at p. 715, 217 Cal.Rptr. 676, 704 P.2d 743.)

In Maki, our Supreme Court (relying on Morrissey and other federal cases), found that a number of “reliability” factors, including the “uncontroverted presence of defendant's signatures” on a car rental invoice and hotel receipt, made those documents admissible to show that defendant had violated the terms of his probation by leaving the state without first obtaining permission to do so from his probation officer.

In contrast to a probation or parole revocation hearing, where the defendant faces an extended loss of his liberty, the proceeding in issue here does not involve a determination on the merits of guilt or innocence.   The “goal of flexibility” espoused in Morrissey and Maki likewise applies to a motion for continuance under Penal Code section 1050.   That section requires only that the declarations presented in support of the motion “detail specific facts showing that a continuance is necessary,” and permits such declarations to be executed by “a party to the action,” indicating that execution upon personal knowledge is not required.³

 The issue here is whether the declarations presented by the People below meet the test of reliability set forth in Morrissey and Maki, and we find that they do.

 In support of their motion for continuance, the People offered two statements, one directly from Officer Hrehor and one indirectly from Officer Ledesma, to the effect that the arresting officer, Lindermeier, had undergone surgery, was immobile, and was unable to testify.   The Los Angeles Police Department employs “court liaison” and “subpoena control” officers such as Hrehor and Ledesma for the purpose of ascertaining the availability of police officer witnesses and relaying such information to the appropriate prosecuting authorities.   For the limited showing required for a motion for continuance, a declaration containing information obtained in the course of the officers' official duties is “competent evidence.”  (See United States v. Penn (11th Cir.1983) 721 F.2d 762;  United States v. McCallum (4th Cir.1982) 677 F.2d 1024;  United States v. Burkhalter (8th Cir.1978) 588 F.2d 604, 607;  all cited in Maki, supra.)

The holding of Brown was not based upon the evidentiary problems in the declarations but rather upon Brown's disapproval of the subpoena policy of the city attorney's office.  (189 Cal.App.3d at pp. 265–266, 234 Cal.Rptr. 416.)   In Brown, we chastised the office of the city attorney for its policy of attempting to subpoena police officer witnesses only two days before the “actual” trial date, rather than at the time the case was set for trial.   As this case illustrates, the city attorney's system is more efficient than we believed.   Here, appellant's case was set for trial on November 25, 1986, but was continued twice upon motion of the defense.   Officer Lindermeier became ill one day after appellant was arraigned on November 6, 1986, and in any event could not have appeared for trial.   Most importantly, even if Officer Lindermeier had not been ill, a subpoena directing him to appear for trial on November 25, 1986 would have been futile, since the trial was not held on that date and was thereafter twice continued at the behest of the defense.   The vast majority of criminal cases are disposed by plea rather than trial.   The city attorney's policy was designed to keep law enforcement officers on the streets and to avoid the officers' making repeated trips to court only to find that the trial has been continued at the request of the defense or for some other reason is not being tried.   The theoretical desirability of subpoenaing the officer at the time trial is set, as expressed in Brown, must be reconciled with the realities that most criminal cases do not go to trial and that peace officers' main duties are in the field, not the courtroom.   To the extent that the Brown opinion demands a rule that “the time to ascertain the availability of a police officer/witness is not on the date set for trial, but at the time the trial date is set” (189 Cal.App.3d at p. 265, 234 Cal.Rptr. 416), we withdraw it.   The showing of good cause for a continuance is determined on a case-by-case basis.  (Id. at p. 266, 234 Cal.Rptr. 416.)

The purpose of the showing required under Section 1050 is for the trial judge to balance the rights of the defendant, People and witnesses “to the greatest degree that is consistent with the ends of justice,” not to provide a procedural obstacle course through which defendants can escape a trial altogether.

The judgment of conviction is affirmed.

FOOTNOTES

1.   Penal Code section 1382 provides, in pertinent part, that “The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:“․“(c) Regardless of when the complaint is filed, when a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he or she is arraigned or enters his or her plea, whichever occurs later, if the defendant is in custody at the time of arraignment or plea, or in all other cases, within 45 days after the defendant's arraignment or entry of the plea, whichever occurs later ․”

2.   The rule here applies to all proceedings.   It includes situations such as where a CHP officer on the way to court sees an accident in which he must provide assistance which delays his attendance in court.   Advising the court and obtaining a continuance can only be done by hearsay.   The same is true, for example, where an out-of-state witness' plane is delayed and the witness cannot be in court until the next day.

3.   A motion for continuance under Penal Code section 1050 may be likened to a defense motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, which may be supported by an affidavit executed upon information and belief by defendant's counsel.  (People v. Memro (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446;  City of Redding v. Superior Court (1988) 200 Cal.App.3d 1181, 246 Cal.Rptr. 417;  Jalilie v. Superior Court (1987) 195 Cal.App.3d 487, 240 Cal.Rptr. 662;  Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 239 Cal.Rptr. 264.)

ASHBY, Acting Presiding Justice.

BOREN and KENNARD, JJ., concur.