Hernandez-Valenzuela v. Super. Ct.

Filed 3/3/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

OSMIN HERNANDEZ-
VALENZUELA, A163992
Petitioner,
(San Francisco City & County
v. Super. Ct. No. 21005426)
THE SUPERIOR COURT OF
THE CITY AND COUNTY OF SAN
FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.
ANDRES VALDIVIA TORRES,
Petitioner,
v. A163996
THE SUPERIOR COURT OF
THE CITY AND COUNTY OF SAN (San Francisco City & County
FRANCISCO, Super. Ct. Nos. 20008445,
21003966)
Respondent;
THE PEOPLE,
Real Party in Interest.

1
 In these consolidated writ proceedings 1, petitioners Andres Valdivia
Torres and Osmin Hernandez-Valenzuela (collectively “petitioners”) each
seek a writ of mandate or prohibition requiring respondent Superior Court of
the City and County of San Francisco to dismiss his case for violating his
speedy trial rights under Penal Code section 1382. 2 Petitioners contend there
was no good cause to continue their cases past the statutory deadline. We
disagree and therefore deny each of their petitions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The COVID-19 Pandemic
On March 4, 2020, Governor Gavin Newsom declared a state of
emergency in response to the global outbreak of COVID-19, a “new disease,
caused by a novel (or new) coronavirus that has not previously been seen in
humans.” 3
On March 16, 2020, the San Francisco Health Officer issued a shelter-
in-place order requiring residents of the county to remain in their homes
except when engaging in essential activities, and to stay at least six feet
apart from other persons when leaving their homes. 4 A few days later, in an

1 On our own motion, and having previously consolidated these cases for
oral argument, we now consolidate Case No. A163992 and Case No. A163996
for purposes of this opinion.
2 All statutory references are to the Penal Code unless otherwise stated.
3 See Executive Department State of California, Proclamation of a State
of Emergency (Mar. 4, 2020), [as of
Mar. 3, 2022].
4 See City and County of San Francisco, Order of the Health Officer No.
C19-07 (Mar. 16, 2020),
[as of Mar. 3, 2022].

2
attempt to limit the spread of the virus, the Governor issued an executive
order requiring all Californians to stay at home except for limited activities. 5
On March 23, 2020, Chief Justice Tani Cantil-Sakauye, in her capacity
as Chairperson of the Judicial Council, issued an emergency statewide order
suspending all jury trials and continuing them for a period of 60 days. The
Chief Justice also extended by 60 days the time period provided for in section
1382 for holding a criminal trial. In so ordering, the Chief Justice explained:
“The [Center for Disease Control], the California Department of Public
Health, and local county health departments have recommended increasingly
stringent social distancing measures of at least six feet between people, and
encouraged vulnerable individuals to avoid public spaces. [¶] Courts cannot
comply with these health restrictions and continue to operate as they have in
the past. Court proceedings require gatherings of court staff, litigants,
attorneys, witnesses, and juries, well in excess of the numbers allowed for
gathering under current executive and health orders. Many court facilities in
California are ill-equipped to effectively allow the social distancing and other
public health requirements required to protect people involved in court
proceedings and prevent the further spread of COVID-19. Even if court
facilities could allow for sufficient social distancing, the closure of schools
means that many court employees, litigants, witnesses, and potential jurors
cannot leave their homes to attend court proceedings because they must stay

5 See Executive Department State of California, Executive Order N-33-
20 (Mar. 19, 2020), [as of Mar. 3, 2022].

3
home to supervise their children. These restrictions have also made it nearly
impossible for courts to assemble juries.” 6
On March 30, 2020, the Chief Justice issued a second statewide
emergency order, authorizing superior courts to issue implementation orders
that “[e]xtend the time period provided in section 1382 of the Penal Code for
the holding of a criminal trial by no more than 60 days from the last date on
which the statutory deadline otherwise would have expired.” 7
On April 29, 2020, the Chief Justice issued a third statewide emergency
order, stating: “The 60-day continuance of criminal jury trials and the 60-day
extension of time in which to conduct a criminal trial under Penal Code
section 1382, both of which I first authorized in my order of March 23, 2020,
are to be extended an additional 30 days. The total extension of 90 days shall
be calculated from the last date on which the trial initially could have been
conducted under Penal Code section 1382.” The Chief Justice explained the
extension applied to those matters for which the last date on which trial
could be conducted under section 1382 occurred or would occur between
March 16, 2020, and June 15, 2020. 8

6 See Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of
California and Chair of the Judicial Council (Mar. 23, 2020), <
https://newsroom.courts.ca.gov/sites/default/files/newsroom/2020-
09/Statewide%20Order%20by%20the%20Chief%20Justice-
Chair%20of%20the%20Judicial%20Council%XXX-XX-XXXX.pdf> [as of Mar. 3,
2022].
7 See Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of
California and Chair of the Judicial Council (Mar. 30, 2020), <
https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/Statewi
de%2520Order%2520by%2520the%2520Chief%2520Justice-
Chair%2520of%2520the%2520Judicial%2520Council%25203-30-2020.pdf>
[as of Mar. 3, 2022].
8 See Statewide Order by Hon. Tani G. Cantil-Sakauye, Chief Justice of
California and Chair of the Judicial Council (Apr. 29, 2020), <

4
 On June 1, 2020, the San Francisco health officer updated the shelter-
in-place order to allow outside gatherings but still required that essential
government functions comply with social distancing requirements to the
greatest extent possible. 9
On December 3, 2020, the state public health officer issued a new
regional stay-at-home order restoring many of the earlier restrictions in an
effort to slow the spread of COVID-19 and avoid overwhelming the state’s
hospitals in response to an unprecedented surge in the level of community
spread of COVID-19. 10 The next day, in response to the surge in COVID-19
cases, the San Francisco health officer issued another stay-at-home order
requiring residents of the county to once again remain in their homes except
when engaging in essential activities. 11 The order was extended on
December 30, 2020. 12 The state’s regional stay-at-home order was lifted on

https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/Chief_J
ustice_Statewide_Emergency-Order_04292020S.pdf> [as of Mar. 3, 2022].
9 See City and County of San Francisco, Order of the Health Officer No.
C19-07e (June 1, 2020), <
https://sfbos.org/sites/default/files/20200601_FINAL_signed_Health_Officer_
Order_C19-07e_updated-Shelter_in_Place.pdf> [as of Mar. 3, 2022].
10 See California Department of Public Health, Regional Stay At Home
Order (Dec. 3, 2020), < https://www.gov.ca.gov/wp-
content/uploads/2020/12/12.3.20-Stay-at-Home-Order-ICU-Scenario.pdf> [as
of Mar. 3, 2022].
11 See City and County of San Francisco, Order of the Health Officer No.
C19-07p (Dec. 4, 2020),
[as of Mar. 3, 2022].
12 See City and County of San Francisco, Order of the Health Officer No.
C19-07q (Dec. 30, 2020),
[as of Mar. 3, 2022].

5
January 25, 2021, 13 and the San Francisco health officer allowed for certain
businesses and other activities to reopen starting on January 28, 2021. 14
On June 15, 2021, the San Francisco health officer’s “Safer Return
Together” order came into effect. 15 The order rescinded the previous stay-at-
home order and lifted indoor capacity limits and social distancing
requirements.
B. Trial Court Proceedings Against Valdivia Torres
On September 17, 2020, an information in Case No. 20008445 charged
Valdivia Torres with making criminal threats (§ 422); false imprisonment (§
236); and exhibiting a deadly weapon (§ 417, subd. (a)(1)).
On September 28, 2020, Valdivia Torres was arraigned in Case No.
20008445 on these charges and entered not guilty pleas and a general time
waiver. Days later, he was granted a mental health diversion and became
subject to monitoring through the behavioral health court. On February 16,
2021, a bench warrant issued for failure to appear at a hearing.
On April 20, 2021, Valdivia Torres was arrested for actions giving rise
to a new felony complaint and information. At a hearing on April 23, 2021, in

13 See California Department of Public Health, Regional Stay At Home
Order (Dec. 3, 2020),
[as of Mar. 3, 2022].
14 See City and County of San Francisco, Order of the Health Officer No.
C19-07s (Jan. 27, 2021),
[as of Mar. 3, 2022].
15 See City and County of San Francisco, Order of the Health Officer No.
C19-07y (July 8, 2021),
[as of Mar. 3, 2022].

6
Case No. 20008445, Valdivia Torres withdrew his general time waiver, and
the court fixed June 22, 2021 as his statutory last day for trial in that case
under section 1382.
On June 3, 2021, an information in Case No. 21003966 charged
Valdivia Torres with child endangerment (§ 273a(a)); two counts of assault
with a deadly weapon–not a firearm (§ 245(a)(1)); battery (§ 242); and
disobeying domestic relations court order resulting in physical injury
(§273.6(b).) On June 16, 2021, he was arraigned on these charges and
entered not guilty pleas. He did not waive time, and respondent court fixed
August 16, 2021 as his statutory last day for trial under section 1382.
On June 22, 2021, the court called Case No. 20008445 for trial. The
court found “extraordinary and exceptional circumstances” existed which
constituted good cause to continue his trial past the last day. The court
described the onset of the “life threatening” COVID-19 pandemic which at
that point had caused over 33 million Americans to be infected and over
600,000 deaths. It took judicial notice of all orders issued by the Governor,
mayor of San Francisco, the Departments of Public Health for the state and
City and County of San Francisco, and the Chief Justice and Judicial Council
related to the COVID-19 emergency, as well as all of respondent court’s
orders regarding facilities and operating procedures under the COVID-19
emergency. Recounting the Governor’s March 4, 2020 state of emergency and
San Francisco’s subsequent emergency shelter in place orders, the court
explained that it had been “required to reduce the number of operational
courtrooms” from 20 to 5 ½ to cover “necessary calendar matters.” This was
due to “huge staff reductions,” “related childcare issues,” and the high
medical risk posed by COVID-19 for staff or their households. After several
weeks, the court was able to resume most of its functions with “serious

7
limitation[s].” On December 4, 2020, a new shelter-in-place order was issued
that caused the court to again suspend jury trials until January 8, 2021.
The court further explained that between April 2020 and June 2021,
“social distancing requirements vastly restricted the amount of seating
within each courtroom, the jury assembly room, the public hallways outside
the courtroom, and the lobby area at the . . . Hall of Justice criminal
courthouse.” Social distancing requirements limited the number of people in
an elevator, use of stairwells, and the jury assembly room. Given the social
distancing restrictions and relocations of other courts to trial courtrooms,
“the criminal court was down from 10 to 4 trial courtrooms each with a
satellite courtroom to accommodate . . . jury selection[s] and to provide a
public gallery to ensure a public trial.” The court also noted that use of the
Civic Center Courthouse had not been a viable option for felony or violent
misdemeanor cases because of the inability to provide adequate security in
that building. Therefore, the only criminal trials that could proceed at that
location were nonviolent misdemeanor trials.
After citing several authorities supporting its good cause finding, the
court discussed the “large backlog of no[-]time[-]waiver cases,” noting there
were 357 no-time-waiver felony cases pending with 168 defendants in
custody. With the lifting of social distancing requirements, additional
courtrooms at both the Hall of Justice and Civic Center Courthouse were
being opened to handle ready no-time-waiver cases. It was the court’s plan to
have some Hall of Justice courtrooms available to hear in-custody no-time-
waiver trials, and some hear out-of-custody felony and violent misdemeanor
trials, even if the in-custody trials had later last days given the court’s
sensitivity that “those who wait trial with a loss of liberty have a heightened
need for resolution than those who await trial out of custody.”

8
 The court elaborated on additional mitigation efforts underway to
assist with resolving cases short of trial, including quadrupling the weekly
hearing capacity of section 995 motions from 5 to 20 per week, expanded
pretrial motions to suppress, and providing additional judges for settlement
conferences to aid in the early disposition of cases. The court indicated it
would continue further communications with its justice partners to solicit
their input on which trials should go out based on agreed upon priorities.
It further stated, “Continued access to the courts and Constitutional
due process requirements to provide defendants with the timely hearing of
their cases are of the greatest import to this court. But the exceptional and
extraordinary circumstances which severely limited this Court in providing a
speedy trial to defendants continues, and it constitutes good cause to
continue their trial beyond the statutory last day.”
Over Valdivia Torres’s objection to the court’s good cause finding, the
court continued his jury trial in Case No. 20008445 to September 2, 2021.
On July 30, 2021, the court granted the prosecution’s motion to
consolidate Case Nos. 20008445 and 21003966. The now-consolidated
information charged Valdivia Torres with the eight counts collectively alleged
in the earlier informations.
On August 16, 2021 (“August 16”), the court called Valdivia Torres’s
consolidated case for trial and arraignment on the new consolidated
information. The court again issued its findings of “extraordinary and
exceptional circumstances constituting good cause” to continue Valdivia
Torres’s trial past his last statutory day. The court largely repeated the
findings made on June 22, 2021. It also provided updated figures on its
backlog, noting there were now 402 felony no-time-waiver cases pending with

9
217 defendants in custody. Again, over Valdivia Torres’s objection to the
good cause findings, the court continued his jury trial.
On September 2, 2021 (“September 2”), the court again called Valdivia
Torres’s consolidated case for trial. The court reincorporated its earlier
findings of extraordinary and exceptional circumstances constituting good
cause to continue Valdivia Torres’s trial beyond the statutory last day,
stating that “[t]hose circumstances continue to exist.” The court also updated
its current backlog of no time waiver trials, noting 414 no-time-waiver felony
cases pending with 212 defendants in custody. The court added that since
June 22, 2021—Valdivia Torres’s previous last day in Case No. 20008445—
the court had arraigned 135 felony matters of which 130 were set for trial on
a no time waiver basis. Over petitioner’ objection, the court continued his
jury trial to December 15, 2021.
On October 14, 2021, Valdivia Torres moved to dismiss his case for
violating his speedy trial rights under section 1382 and the Sixth
Amendment to the U.S. Constitution. The court denied the motion.
C. Trial Court Proceedings against Hernandez-Valenzuela
On July 19, 2021, an information in Case No. 21005426 charged
Hernandez-Valenzuela with discharge of a firearm (§ 246.3, subd. (a));
exhibiting a concealed firearm in public (§ 417, subd. (a)(2)(A)); possession of
a firearm by a felon (§ 29800, subd. (a)(1)); convicted person carrying a
firearm (§ 25850, subd. (a)); convicted person having a concealed firearm in a
vehicle (§ 25400, subd. (a)(1)); evading an officer with willful disregard
(Vehicle Code, § 2800.2, subd. (a)); possession of ammunition (§ 30305, subd.
(a)(1)); and resisting destruction or delaying of a peace officer (§ 148, subd.
(a)(1)). On July 26, 2021, he was arraigned on these charges, entered not
guilty pleas, and requested a jury trial on a no-time-waiver basis.

10
 On September 24, 2021 (“September 24”), the court called Case No.
21005426 for trial. The court noted it was the last statutory day, and the
parties announced ready. The court found “exceptional and extraordinary
circumstances” existed which constituted good cause to continue Hernandez-
Valenzuela’s trial past the statutory last day. As it had done when it
continued Valdivia Torres’s trial, the court described the “life threatening”
COVID-19 pandemic and noted the increase in the number of infected
Americans (over 39 million) and the number of deaths (over 621,000)
attributable to the virus. Likewise, it took judicial notice of all the
government-issued orders related to the COVID-19 emergency that had been
taken in the Valdivia Torres proceeding. It also issued findings largely
similar to the ones issued by the court in Valdivia Torres’s case to support its
good cause finding. In explaining the insufficient security at the Civic Center
Courthouse for criminal trials other than nonviolent misdemeanor trials, the
court added that there were not enough bailiffs to cover each courtroom and
that the San Francisco Sheriff’s Office was already overextended at the jails
and the Hall of Justice. The court also provided updated figures regarding its
backlog, noting that there were now 437 felony no-time-waiver cases with 232
defendants in custody. The court repeated, “Continued access to the courts
and constitutional due process requirements to provide defendants with
timely hearing of their cases are of the greatest import to this court, but the
exceptional and extraordinary circumstances which severely limit this court
in providing a speedy trial to the defendant constitutes good cause to
continue defendant's trial beyond the statutory last day.” Over Hernandez-
Valenzuela’s objection, the court continued his jury trial to February 25,
2022.

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 On October 13, 2021, Hernandez-Valenzuela moved to dismiss his case
for violating his speedy trial rights under section 1382 and the Sixth
Amendment to the U.S. Constitution. The court denied the motion.
D. Petitioners’ Writ Proceedings
On November 24, 2021, Valdivia Torres and Hernandez-Valenzuela
separately petitioned for a writ of mandate or prohibition seeking the
dismissal of his case based on the violation of his speedy trial rights without
good cause. 16 On December 22, 2021, in both proceedings, we issued orders to
show cause (“OSC”) to the People as the Real Party in Interest why the relief
requested by petitioners should not be granted. 17 On January 14, 2022, Real
Party in Interest represented by the San Francisco District Attorney (“Real

16 Around this time, other additional writ petitions were filed in the First
District Court of Appeal asserting similar claims: Cook v. Superior Court,
Case No. A163907 and A163924 (filed Nov. 12, 2021); Gulakov v. Superior
Court, Case No. A163925 (filed Nov. 15, 2021); Sylvester v. Superior Court,
Case No. A163945 (filed Nov. 17, 2021); Kloster v. Superior Court, Case No.
A163950 (filed Nov. 18, 2021); Gonzalez-Warren v. Superior Court, Case No.
A163990 (filed Nov. 24, 2021); Ortiz v. Superior Court, A163993 (filed Nov.
24, 2021); Taylor v. Superior Court, Case Nos. A163994 and A163995 (filed
Nov. 24, 2021); Zhao v. Superior Court, Case No. A163997 (filed Nov. 24,
2021); Sullivan v. Superior Court, Case No. A163998 (filed Nov. 24, 2021);
and Jones v. Superior Court, Case No. A163999 (filed Nov. 29, 2021).
17 In both matters, we invited briefing from the respondent court on three
questions: (1) why was it not possible to send Petitioner’s case to one of the
Hall of Justice’s criminal trial courtrooms not conducting a criminal trial on
August 16, 2021, and September 2, 2021, when his case was called for trial;
(2) why the courtrooms in the Civic Center Courthouse could not be used to
try out-of-custody felony defendants, in trials where all witnesses are also out
of custody since respondent court’s reopening on June 28, 2021; and (3) what
measures has the court undertaken to prioritize in-custody, no-time-waiver
felony criminal trials to avoid infringing defendants’ speedy trial rights since
its reopening. The respondent court submitted letter responses addressing
the questions posed in the OSC.

12
Party” or “District Attorney”) filed answers and returns to the petitions. On
January 26, 2022, each petitioner filed a traverse/reply.
On January 18, 2022, we consolidated the two writ proceedings for
purposes of oral argument. On February 9, 2022, petitioners (represented by
the same counsel) and Real Party (also represented by the same counsel)
appeared for oral argument.
On February 18, 2022, Valdivia Torres notified us that his case was to
be advanced to trial on February 22, 2022. On February 22, 2022, Real Party
informed us that Valdivia Torres’s trial had begun and that jury selection
was scheduled for February 24, 2022, and requested that we dismiss Valdivia
Torres’s writ petition as moot because his trial had begun. The next day,
Valdivia Torres submitted a letter response opposing dismissal on mootness
grounds.
DISCUSSION
Valdivia Torres contends his section 1382 speedy trial rights were
violated by the continuances granted on August 16 and September 2, while
Hernandez-Valenzuela contends his section 1382 speedy trial rights were
violated by the continuance granted on September 24. They assert there was
no good cause for the continuances and the court abused its discretion in
granting them. We disagree.
A. Mootness
As an initial matter, we reject Real Party’s request to dismiss Valdivia
Torres’s writ petition as moot based on the start of his trial.
A case is considered moot when “the question addressed was at one
time a live issue in the case” but has been deprived of life “because of events
occurring after the judicial process was initiated.” (Younger v. Superior Court
(1978) 21 Cal.3d 102, 120.) “The pivotal question in determining if a case is

13
moot is therefore whether the court can grant the plaintiff any effectual
relief.” (Wilson & Wilson v. City Council v. Redwood City (2011) 191
Cal.App.4th 1559, 1574.) However, “[w]hen a question of general public
concern is involved, particularly in the area of the supervision of the
administration of criminal justice, a reviewing court may reject mootness as a
bar to a decision on the merits of an issue. [Citation.] Thus, a reviewing
court has ‘inherent authority’ to resolve an issue of broad public interest that
is likely to recur, even though an event occurring during the pendency of the
case would normally render the matter moot.” (Medina v. Superior Court
(2000) 79 Cal.App.4th 1280, 1285–1286 (Medina).)
Even if we assume without deciding that Valdivia Torres’s writ petition
is now moot, we will not dismiss it. The matters before us are of significant
public interest since they bear on the constitutional speedy trial rights of
many defendants currently awaiting trial in respondent court well past their
statutory last days and respondent court’s management of these cases. In
light of the backlog facing respondent court as of September 24 (437 felony
no-time-waiver cases with 232 of the defendants in custody), the issues are
also likely to recur. We therefore conclude that the petition present issues of
sufficient public importance that it justifies rejecting mootness as a bar to a
decision on the merits. Accordingly, we decline to dismiss Valdivia Torres’s
petition as moot (see Medina, supra, 79 Cal.App.4th at p. 1286 [deciding
speedy trial writ petition presented issues of broad public interest likely to
recur unless resolved despite dismissal of underlying felony case]) and
proceed to the merits of both his and Hernandez-Valenzuela’s petitions.
B. Applicable Law
“The right to a speedy trial is a fundamental right guaranteed by both
the Sixth Amendment to the United States Constitution and article I, section

14
15 of the California Constitution. [Citation.] The purpose of the speedy trial
right is ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.’ [Citation.] ‘To implement an accused’s
constitutional right to a speedy trial, the Legislature enacted section 1382.’ ”
(Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 825; see also People v.
Sutton (2010) 48 Cal.4th 533, 545 (Sutton) [“[S]ection 1382 is one of the
principal provisions implementing a criminal defendant’s statutory right to a
speedy trial.”].)
Section 1382 prescribes certain time periods within which an accused
must be brought to trial. (§ 1382, subd. (a).) The statute provides that, in a
felony case, “the court shall dismiss the action when a defendant is not
brought to trial within 60 days of his or her arraignment on an indictment or
information, unless (1) the defendant enters a general waiver of the 60-day
trial requirement, (2) the defendant requests or consents (expressly or
impliedly) to the setting of a trial date beyond the 60-day period (in which
case the defendant shall be brought to trial on the date set for trial or within
10 days thereafter), or (3) ‘good cause’ is shown.” (Sutton, supra, 48 Cal.4th
at p. 545; see also § 1382, subd. (a).)
“No affirmative showing of prejudice is necessary to obtain a dismissal
for violation of the state constitutional speedy trial right as construed and
implemented by statute. [Citation.] Instead, ‘an unexcused delay beyond the
time fixed in section 1382 . . . without defendant’s consent entitles the
defendant to a dismissal.’ ” (People v. Martinez (2000) 22 Cal.4th 750, 766.)
The prosecution has the burden of establishing good cause to avoid
dismissal. (People v. Johnson (1980) 26 Cal.3d 557, 569, fn. 12 (Johnson);
Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 781 (Rhinehart) [“The

15
burden of showing good cause is on the prosecution.”].) “ ‘[I]n making its
good-cause determination, a trial court must consider all of the relevant
circumstances of the particular case, “applying principles of common sense to
the totality of the circumstances. . . .” [Citations.] The cases recognize that,
as a general matter, a trial court “has broad discretion to determine whether
good cause exists to grant a continuance of the trial” [citation], and that, in
reviewing a trial court’s good-cause determination, an appellate court applies
an “abuse of discretion” standard.’ ” (People v. Engram (2010) 50 Cal.4th
1131, 1162–1163 (Engram).)
C. Analysis
There is no doubt or dispute that Valdivia Torres was not brought to
trial within 60 days of his arraignments, or that Hernandez-Valenzuela has
not been brought to trial within 60 days of his arraignment.
In Case No. 20008445, Valdivia Torres withdrew his time waiver on
April 23, 2021, so his last statutory day for trial in that case was on June 22,
2021. On that day, his trial was continued to September 2, 2021, and
continued again to December 15, 2021. In Case No. 21003966, Valdivia
Torres was arraigned on June 16, 2021, and never waived time, so his
original last day for trial was on August 16, 2021. After this case was
consolidated with the earlier one, on September 2, 2021, it, too, was
continued to December 15, 2021. He did not consent to any of the
continuances. When the continuances were granted on September 2, 2021,
about nine weeks had elapsed since his statutory last day (June 22, 2021) in
Case No. 20008445, and about two weeks since his last statutory day (August
16, 2021) in Case No. 21003966.
In Case No. 21005426, Hernandez-Valenzuela was arraigned on July
26, 2021, so his last statutory day for trial was September 24, 2021. On that

16
day, his trial was continued to February 25, 2022. He never waived time, nor
did he consent to a continuance.
The issue before us is whether the trial court abused its discretion in
finding exceptional and extraordinary circumstances constituting good cause
to continue both petitioners’ jury trials past their last statutory days.
“Whether or not good cause exists depends on the circumstances of the
case.” (Rhinehart, supra, 35 Cal.3d at p. 781.) “ ‘[S]ection 1382 does not
define “good cause” as that term is used in the provision, but numerous
California appellate decisions that have reviewed good-cause determinations
under this statute demonstrate that, in general, a number of factors are
relevant to a determination of good cause: (1) the nature and strength of the
justification for the delay, (2) the duration of the delay, and (3) the prejudice
to either the defendant or the prosecution that is likely to result from the
delay.’ ” (Engram, supra, 50 Cal.4th at pp. 1162–1163.)
In reviewing a trial court’s exercise of its discretion in determining
what constitutes good cause, “the appellate courts have evolved certain
general principles. The courts agree, for example, that delay caused by the
conduct of the defendant constitutes good cause to deny his motion to dismiss.
Delay for defendant’s benefit also constitutes good cause. Finally, delay
arising from unforeseen circumstances, such as the unexpected illness or
unavailability of counsel or witnesses constitutes good cause to avoid
dismissal.” (Johnson, supra, 26 Cal.3d at p. 570.)
“[A] broad variety of unforeseen events may establish good cause under
section 1382.” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1198 (Hajjaj).) For
instance, in In re Venable (1927) 86 Cal.App.585, an epidemic of infantile
paralysis was prevalent in the town where court sessions were held and
prohibited calling juries. (Id. at p. 587.) The court concluded the quarantine

17
imposed to prevent the spread of the infectious disease was good cause for the
delay of trial and found there was no unreasonable delay in bringing the case
to trial after the cessation of the epidemic. (Id. at p. 587.) In People v. Tucker
(2011) 196 Cal.App.4th 1313, the defendant could not appear for trial as he
was under quarantine because another inmate had contracted the H1N1 flu
virus. (Id. at p. 1315.) The court concluded that medical necessity of the
defendant’s quarantine constituted good cause for the continuance of his trial.
(Id. at pp. 1317–1318.) More recently, in Stanley v. Superior Court of Contra
Costa County (2020) 50 Cal.App.5th 164, Division Four of this court
concluded the COVID-19 pandemic and impact it has had within the state
supported the trial court’s finding of good cause to continue the defendant’s
trial. (Id. at p. 166.) The court observed that the COVID-19 pandemic was
“of such severity” as to justify a 90-day continuance and observed that courts
were places of high risk during the pandemic given they involved gatherings
of judges, court staff, litigants, attorneys, witnesses, defendants, law
enforcement, and juries in excess of the numbers allowed for gatherings
under the then applicable executive and health orders. (Id. at pp. 169–170
[“Health quarantines to prevent the spread of infectious diseases have long
been recognized as good cause for continuing a trial date.”].)
In contrast, “[d]elay attributable to the fault of the prosecution . . .
does not constitute good cause. Neither does delay caused by improper court
administration.” (Johnson, supra, 26 Cal.3d at p. 570.) In Johnson, the
Supreme Court considered whether court congestion could excuse compliance
with the time limits of the speedy trial statute. (Id. at p. 569.) It recognized
that “the purpose of the state constitutional protection of the right to a
speedy trial is ‘to protect those accused of crime against possible delay,
caused either by willful oppression, or the neglect of the state or its officers.’ ”

18
(Id. at p. 571.) Included in this group were the judiciary, and “oppression”
and “neglect” could include the failure to provide the facilities and personnel
needed to implement the right to speedy trial. (Ibid.) “ ‘[U]nreasonable delay
in run-of-the-mill criminal cases cannot be justified by simply asserting that
the public resources provided by the State’s criminal-justice system are
limited and that each case must await its turn.’ ” (Ibid.)
The Johnson court quoted the following passage relating to the problem
of delay caused by court congestion, set forth in the American Bar
Association’s Standards for Speedy Trial: “ ‘[D]elay arising out of the chronic
congestion of the trial docket should not be excused. . . . [¶] . . . But, while
delay because of a failure to provide sufficient resources to dispose of the
usual number of cases within the speedy trial limits is not excused, the
standard does recognize congestion as justifying added delay when
“attributable to exceptional circumstances.” Although it is fair to expect the
state to provide the machinery needed to dispose of the usual business of the
courts promptly, it does not appear feasible to impose the same requirements
when certain unique, nonrecurring events have produced an inordinate
number of cases for court disposition.’ ” (Johnson, supra, 26 Cal.3d at p. 571,
emphasis added [citing ABA Project on Standards for Crim. Justice, Stds.
Relating to Speedy Trial (Approved Draft 1968) pp. 27–28].) In elaborating
upon the type of “unique, nonrecurring events” that would constitute
“exceptional circumstances,” this document states: “[W]hen a large-scale riot
or other mass public disorder has occurred, some leeway for additional time is
required to ensure that the many resulting cases may receive adequate
attention from the prosecutor’s office, defense counsel (possibly a single
public defender office), and the judiciary.” (See Engram, supra, 50 Cal.4th
1131, 1164, fn.12; see also People v. Cole (2008) 165 Cal.App.4th Supp 1, 17

19
[“Exceptional circumstances are defined as unique, nonrecurring events
which have produced an inordinate number of cases for court disposition.”].)
In Engram, supra, 50 Cal.4th 1131, the basis of the delay was the
unavailability of a judge or courtroom to try defendant’s case within the
presumptive statutory period. (Id. at p. 1163.) Engram’s case was in
Riverside County Superior Court, which had been “severely overburdened by
the substantial number of criminal cases awaiting trial in that county.” (Id.
at p. 1136 [citing report of task force established to assess and assist with
backlog that 25% of inmates had been awaiting trial for more than a year,
170 had been waiting more than two years, and 32 had been waiting more
than 4 years].) Engram’s last day for trial was July 28, 2008. (Id. at p. 1139.)
After the court granted one continuance requested by Engram and three
continuances requested by the prosecution, the parties agreed that
September 29, 2008, was the last day for trial. (Id. at p. 1140.) That day,
when the case was called, Engram announced ready. (Ibid.) However, that
day there were 17 other last day cases before the court, each which presented
a statutory speedy trial issue similar to Engram’s. (Ibid.) The trial court
informed the parties that there were no available courtrooms to which the
case could be assigned for trial. (Id. at p. 1141.) Upon hearing Engram’s
motion to dismiss the following day, the court dismissed the case due to a
lack of judge and a courtroom to timely try his case. (Id. at p. 1144.) The
Court of Appeal concluded the trial court did not abuse its discretion in
determining there was no good cause to delay Engram’s trial beyond the last
day. (Id. at pp. 1146–1147.)
The Supreme Court directly rejected the Riverside District Attorney’s
assertion that the lack of judge or courtroom constituted good cause to delay
the trial until a courtroom became available. (Engram, supra, 50 Cal.4th at

20
pp. 1162–1163.) It observed that “[p]ast California decisions [have]
establish[ed] that when the unavailability of a judge or courtroom is fairly
attributable to the fault or neglect of the state, such unavailability does not
constitute good cause within the meaning of section 1382.” (Id. at p. 1163.)
It further recognized that “the lack of a sufficient number of judges or
courtrooms might constitute good cause to justify the delay of trial under
section 1382 in ‘exceptional circumstances,’ ” but “delay arising out of chronic
congestion of a court’s trial docket cannot be excused.” (Ibid.) Referencing
the general circumstances prevailing in Riverside Superior Court, the Court
concluded that “the trial court properly could find that the congested criminal
caseload represented a chronic condition rather than an exceptional
circumstance, and further that the lack of available courtrooms and judges
was attributable to the Legislature’s failure to provide a number of judges
and courtrooms sufficient to meet the rapidly growing population in Riverside
County.” 18 (Id. at p. 1164.) The Court also explained: “[T]he applicable
California statutes do not require a chronically underfunded and
understaffed court such as the Riverside Superior Court either (1) to
accommodate last-day criminal proceedings by devoting an unreasonable or
disproportionate share of its resources to ensure that all last-day matters will
be tried within the presumptive statutory period, or (2) to continue such

18 In a footnote, Engram explained that “[t]he lack of a number of judges
sufficient to handle the matters pending in the Riverside Superior Court
[was] a long-known and well-documented problem.” (Engram, supra, 50
Cal.4th at p. 1165, fn. 13.) In 2004, a study by the Judicial Council found
that approximately 350 additional new judgeships were needed statewide
and that the Riverside Superior Court was one of the trial courts most in
need of new judgeships. (Ibid.) In 2008, a Judicial Council report to the
Legislature regarding the need for new superior court judgeships, the
Riverside Superior Court was ranked first in unmet judicial needs. (Ibid.)

21
trials beyond the presumptive statutory period (rather than dismiss the
criminal proceedings) on the premise that the persistent backlog constitutes
‘good cause’ under section 1382 to justify a delay. The calendar congestion
that produced the circumstance in which the numerous last-day criminal
cases pending in the superior court exceeded the resources available to the
court unquestionably constituted a chronic condition. It cannot properly be
characterized as an ‘exceptional circumstance.’ ” (Id. at p. 1165.)
Here, we conclude the trial court did not abuse its discretion in finding
good cause for continuing Valdivia Torres’s trial on August 16 and September
2 or Hernandez-Valenzuela’s trial on September 24. The District Attorney
satisfied his burden of establishing good cause for these continuances.
In making a determination of good cause for not bringing a defendant
to trial within the statutory time frame for reasons of court congestion or
backlog, the Supreme Court explained that the critical inquiry is whether the
congestion or backlog is attributable to chronic conditions as opposed to
exceptional circumstances considering all of the relevant circumstances.
(Johnson, supra, 36 Cal.3d at p. 572; Engram, supra, 50 Cal.4th at p. 1163.)
The District Attorney adequately showed respondent court’s backlog
resulting in the delay of petitioners’ trials was attributable to exceptional
circumstances connected to the COVID-19 pandemic, not chronic conditions
in respondent court.
The COVID-19 pandemic has been a “ ‘unique, nonrecurring event[]’ ”
which “ ‘ha[s] produced an inordinate number of cases for court disposition,’ ”
and thus exceptional circumstances justifying delay of petitioner’s trial.
(Johnson, supra, 26 Cal.3d at p. 571.) From early March 2020 to June 28,
2021—when respondent court fully reopened—respondent court was unable
to operate at its usual capacity for approximately fifteen months due to safety

22
orders imposed by health officers in response to the pandemic. During three
of the fifteen months, jury trials were suspended by the Chief Justice’s
statewide emergency orders. The Chief Justice’s blanket 90-day extension of
the last days of all criminal jury trials with last days between March 16,
2020, and June 15, 2020, reflected the challenge of conducting jury trials
during the pandemic. As the Chief Justice explained, courts were a “high
risk” environment during the pandemic given they required the assembly of
judges, court staff, litigants, attorneys, witnesses, defendants, law
enforcement, and juries in excess of the number allowed for gathering under
governing health orders. Criminal jury trials in respondent court were
suspended again for another month during the surge of community spread of
COVID-19 in December 2020. During the other months that jury trials were
not suspended, respondent court was limited to using only four of its ten trial
courtrooms for criminal jury trials due to social distancing requirements
imposed by health orders. None of these events were the fault of the
prosecution or respondent court but rather the unprecedented effects of the
pandemic.
When respondent court reopened on June 28, 2021, after fifteen months
of diminished or no capacity to conduct criminal jury trials, it was not
surprising that it confronted an “ ‘inordinate number of cases for court
disposition.’ ” (Johnson, supra, 26 Cal.3d at p. 571.) The pandemic had
severely limited its ability to conduct jury trials. Upon reopening, scores of
no-time-waiver felony cases past their statutory day had accumulated during
the 15-month period of limited operations. As of August 29, 2021, respondent
court’s jury trial list indicated there were approximately 220 no-time-waiver
felony cases with original last days sometime in the 15-month period before
reopening. The District Attorney explains that respondent court attempted

23
to address this backlog by prioritizing older cases first when it reopened.
Respondent court assigned trials out in order of their statutory last days,
prioritizing three courtrooms for in-custody felony trials and maintaining the
remaining courtrooms for out-of-custody trials with earlier last days.
It was in this context in which petitioners’ trials were called and
continued on August 16, September 2, and September 24, since on those
dates other defendants with earlier last days than petitioners—most of whom
with last days fell within the 15-month period before reopening—were still
awaiting trial. After fifteen months of constrained operations resulting in a
backlog of numerous no-time-waiver cases, it was not unreasonable for
respondent court to not have addressed its backlog within seven, nine, or
twelve weeks of reopening, that is, by Valdivia Torres’s August 16 and
September 2 last days, or by Hernandez-Valenzuela’s September 24 last day.
Moreover, it was not unreasonable after those fifteen months for the court to
need some latitude to determine how best to addressing its backlog, while the
pandemic persisted despite the full reopening. (See Sutton, supra, 48 Cal.4th
at p. 555, fn. 10 [quoting ABA standards which observe that it is unfeasible to
expect the same prompt disposition of court business when a unique,
nonrecurring event results in many cases for disposition and advocating for
“some leeway for additional time” in such circumstances].) The method the
court chose of advancing cases from the backlog by order of their statutory
last days did not reflect court mismanagement. Rather, it was a reasonable
approach in line with priorities set forth in section 1048 19 and not

19 Section 1048 states in relevant part: “(a) The issues on the calendar
shall be disposed of in the following order, unless for good cause the court
directs an action to be tried out of its order: (1) Prosecutions for felony, when
the defendant is in custody. (2) Prosecutions for misdemeanor, when the

24
detrimental to the good cause finding. Based on the totality of these
circumstances, it was not an abuse of discretion for the respondent court to
conclude that the backlog delaying petitioners’ cases was attributable to
exceptional circumstances constituting good cause and to continue their
trials.
Petitioners contend that “the COVID-19 pandemic can no longer serve
as blanket good cause for continuing trials” “thanks to a successful
vaccination campaign and the lifting of capacity and social distancing
requirements, respondent court has been open for criminals jury trials with a
full complement of courtrooms since June 2021.” Notwithstanding the
availability of vaccines, the lifting of social distancing requirements, and
respondent court’s reopening, we would be remiss to conclude the pandemic
was over or its effects on court operations completely abated on the dates
petitioners’ cases were called. On those dates, there was no indication that
the Governor’s state of emergency had been lifted. San Francisco health
officer’s June 2021 order, which lifted social distancing requirements and
indoor capacity limits and paved the way for respondent court’s reopening,
noted that while the public health threat from COVID-19 was decreasing in
the county, the virus “continues to pose a risk especially to individuals who
are not fully vaccinated, and certain safety measures continue to be
necessary to protect against COVID-19 cases and deaths.” The COVID-19
health emergency continued to persist and governmental entities continued
to be subject to health orders to limit transmission risk of COVID-19 and
contain COVID-19 outbreaks. In short, the pandemic was not a thing of the

defendant is in custody. (3) Prosecutions for felony, when the defendant is on
bail. (4) Prosecutions for misdemeanor, when the defendant is on bail.”
(§ 1048, subd. (a).)

25
past nor had the court returned to business-as-usual when petitioners’ cases
were called for trial.
Petitioners further contend that even with the large backlog, there can
be no good cause for the continuances because respondent court “was not
actually congested,” which petitioners assert is a prerequisite to a good cause
finding. They argue that when the prosecution seeks to rely on court
congestion to avoid dismissal, it must not only prove that exceptional
circumstances exist but also that the court was “actually congested—in other
words, that the delay was due to the ‘unavailability of a judge or courtroom.’ ”
They emphasize that respondent court left half of its criminal courtrooms
unused in late August and September 2021, and that on their respective
statutory last days respondent court had multiple available criminal trial
courtrooms.
We disagree that the open courtrooms preclude respondent court’s good
cause finding. In Hajjaj, supra, 50 Cal.4th 1184, the Supreme Court
recognized that “a broad variety of unforeseen events may establish good
cause under section 1382” and that the unavailability of judges or courtrooms
sufficient to handle a court’s caseload due to chronic congestion of the court’s
docket was not such an event. (Id. at p. 1198, emphasis added.) In contrast,
the backlog pending in respondent court at issue here has not been due to
chronic congestion, but rather the result of a global pandemic—a “unique,
nonrecurring event[] [that has] produced an inordinate number of cases for
disposition” and which may properly regarded as an exceptional circumstance
that would support a court’s good cause determination. (See id. at p. 1204;
Johnson, supra, 26 Cal.3d at p. 571; see also Arreola v. Municipal Court
(1983) 139 Cal.App.3d 108, 114 [“While chronic congestion will not constitute

26
good cause, court backlogs caused by exceptional circumstances will excuse
delay in bringing a defendant to trial.”].)
Even so, petitioners further contend that no “such exceptional
circumstances exist” because the backlog was caused by “routine docket
congestion” which was “now overwhelmingly attributable to [respondent
court’s] own poor administration of its trial docket” in the months since
reopening. They describe the unused courtrooms in August and September
2021 as a “stunning decision” by respondent court and a clear example of
“ ‘improper court administration’ and ‘institutional shortcomings.’ ”
As an initial matter, we reject petitioners’ assertions that respondent
court’s backlog arose from “routine” docket congestion or represented a
“chronic” condition. Notably, petitioners acknowledge that the court’s
“backlog was originally caused by public health restrictions to combat the
covid-19 pandemic.” Thus, the backlog petitioners’ cases were a part of was
due at least in part to the pandemic and thus far from a routine event. (See,
e.g., Stanley, supra, 50 Cal.App.5th at p. 170 [describing COVID-19 pandemic
as an “emergency that has overwhelmed the nation and much of the world”].)
Petitioners’ own analyses show the backlog was not simply a routine backlog
divorced from the pandemic. For instance, Valdivia Torres notes, “[A]s of
September 1, almost half the backlog consisted of cases with statutory
deadlines after respondent court’s reopening on June 29.” This means the
majority of no-time-waiver felony trials in the backlog as of September 1 were
cases whose last days fell during the 15-month period of constrained
courtroom operations caused by the pandemic. This consisted of more than
200 cases with defendants charged with felonies with last days before
respondent court’s reopening were awaiting trial when Valdivia Torres’s case
was called on September 2.

27
 Nor can we agree that respondent court’s backlog was “chronic” when
Valdivia Torres’s cases were called on August 16, September 2, and
Hernandez-Valenzuela’s case was called on September 24. On those dates, it
had been seven, nine, and twelve weeks, respectively, since the court’s full
reopening on June 28. Even at the longer end, a twelve-week backlog is of a
significantly shorter duration than the years-long congestion the Supreme
Court in Engram deemed to be a “chronic condition.” (Engram, supra, 50
Cal.5th at p. 1164.) Petitioners have provided no authority for its view that
the seven, nine, or twelve-week delay should be regarded as chronic, and we
see nothing “routine” or “chronic” about the backlog facing respondent court.
As to the empty or available courtrooms on the day petitioners’ cases
was called, evidence included by petitioners in the record includes
documentation that several departments in respondent court’s Hall of Justice
did not hold trials or held only limited trials throughout August and
September. The District Attorney acknowledges that departments 26, 27,
and 29 did not hold a trial throughout August; Department 10 did not hold a
trial throughout August except for August 31; and Departments 16, 19, 21, 27
and 29 did not hold trials throughout September. Valdivia Torres also
included evidence, admitted by the District Attorney, that on August 16,
when his case was called, there were at least four departments in the Hall of
Justice not engaged in trial and on September 2, the next time his case was
called, there were seven departments. Similarly, Hernandez-Valenzuela
included evidence, admitted by the District Attorney, that on September 24,
when his case was called, there were at least six departments in the Hall of
Justice not engaged in trial. Yet these open courtrooms are not dispositive or
fatal to the court’s good cause finding.
That courtrooms were sitting empty when hundreds of defendants were

28
past their statutory last days is both startling and troubling in light of the
backlog. On its face, these empty courtrooms—including the ones available
on the days petitioners’ cases were called for trial and continued—appear to
undermine respondent court’s own assertion that providing defendants with
the timely hearing of these cases is of the greatest import to the court.
However, these unused courtrooms do not mean respondent court was not
undertaking efforts to reduce its backlog. The District Attorney explains that
in sharp contrast to the 41 no-time-waiver cases the court was able to assign
to the four courtrooms during the fifteen months of limited operations,
respondent court advanced 221 no-time-waiver felony trials in the six months
since reopening. Of those, 38 were assigned to a trial courtroom but most of
these (24) were resolved without trial. As to the remaining advanced cases,
they were not assigned to a trial courtroom as they were settled, dismissed,
or continued.
While unused courtrooms appear to have been an understood
consequence of the court’s method for advancing cases, their existence also
does not mean respondent court was addressing its backlog at the leisurely
place the dissent portrays. The dissent observes that in the six-and-a-half
months following the court’s reopening, respondent court tried to verdict (or
hung jury) just five felony cases for in-custody defendants, and that adding
the 11 trials conducted for out-of-custody defendants nets a total number of
16 felony trials tried to verdict for the six-and-a-half-month period following
reopening. If this were all that respondent court had been doing to address
its backlog, we would likewise view it as paltry. But that was not the extent
of the court’s activities. As noted above, respondent court advanced more
than 200 no-time-waiver felony cases for trial in the six-and-a-half months
since reopening, though most were ultimately settled, dismissed, or

29
continued. Further, trials and proceedings related to cases set for trial were
occurring in respondent court and using courtroom space. The parties
stipulated that respondent court held 69 “criminal jury trials” during the six-
and-a-half-month period since reopening (June 28, 2021 to January 13, 2022),
which included the felony trials recognized by the dissent, a number of other
felony trials that did not reach verdict but occupied courtroom space, and
misdemeanor trials. 20 Simply put, significant efforts were being made to
address the backlog.

20 The parties aver that the exhibit attached to their stipulation
“accurately reflects the criminal jury trials held by respondent court for the
period from March 16, 2020 to January 13, 2022.” According to that exhibit,
from March 16, 2020 to January 13, 2022, there were 69 "criminal jury trials"
of which 28 were tried to verdict, nine were dismissed at some unknown
stage of the proceedings, 16 were resolved by plea agreement at some
unknown stage of the proceedings, and six remained ongoing as of January
13, 2022. The remaining cases were either continued or diverted, a bench
warrant was issued, or a mistrial was declared. Footnote 3 in the dissent
references this stipulation and notes that 28 trials is a “small fraction” of the
number of criminal jury trials compared to respondent court’s average
between late 2009 and early 2018 of 285 criminal trials per year—a figure
provided by the District Attorney. While we do not question that there has
been a dramatic decrease in the number of criminal jury trials in respondent
court since reopening compared to pre-pandemic times, we are unable to
determine if the drop off has been as severe as the dissent suggests. The
District Attorney does not identify the source of his 285-average count, nor
does he explain what constitutes a “criminal jury trial” in this
count. Moreover, the parties’ stipulation—which includes in its tally of
“criminal jury trials” cases resolved without jury involvement—suggests the
annual averages cited by the District Attorney may be similarly defined and
could also include cases that were not completely tried to verdict or hung
jury. Without a clear record before us, we can only conclude there has been a
significant decline but cannot attach definite numbers to it. Even so, this
decline does not detract from our view that respondent court should be
granted some leeway in addressing its backlog following the exceptional
circumstances wrought by the pandemic.

30
 Accordingly, at this stage, we cannot declare the backlog to be the
result of court mismanagement or improper administration in light of the
unique and unprecedented pandemic-related challenges which strained
respondent court’s operations for fifteen months, the impacts of which
continued in the months after reopening. As this court stated in Lewis v.
Superior Court (1981) 122 Cal.App.3d 494, “It is not our function to interfere
with the trial court in its administration of the calendar or assignment of
judges,” (id. at p. 498) only to determine whether delays are due to
exceptional circumstances or arise out of chronic docket problems. To that
end, in light of the 15-month constraints on court operations that preceded
the reopening and left scores of delayed cases ready for trial upon reopening,
we cannot conclude the delays arose out of chronic docket problems rather
than exceptional, pandemic-related circumstances.
Lastly, petitioners assert “the trial court’s decision to prioritize civil
proceedings—holding trials in asbestos, medical malpractice and other non-
urgent cases while more than a hundred people sit in custody awaiting their
trials—fatally undermines its good cause finding.” They argue this “unlawful
prioritization” of civil proceedings fatally undermines respondent court’s good
cause finding and mandates dismissal. They also contend civil courtrooms at
the Civic Center Courthouse should be reassigned to hear criminal trials,
rather than non-urgent civil cases for which they are presently being used.
On these points, we readily disagree.
Section 1050, which petitioners rely on in support for their “unlawful
prioritization” argument, states, “criminal cases shall be given precedence
over, and set for trial and heard without regard to the pendency of, any civil
matters or proceedings.” (§ 1050, subd. (a).) However, the Supreme Court in
Engram acknowledged Section 1050 is “ ‘directory only and does not mandate

31
dismissal of an action by its terms.’ ” (See Engram, supra, 50 Cal.4th 1131,
1151, fn. 8.) The Engram court also concluded that the chronically
underfunded and understaffed Riverside Superior Court had no statutory
obligation accommodate criminal proceedings on their last day “by devoting
an unreasonable or disproportionate share of its resources to ensure that all
last-day matters will be tried within the presumptive statutory period.” (Id.
at p. 1165.) Since we are of the view that respondent court’s backlog had not
reached a point where it can be fairly described as “chronic,” there is even
greater reason to not mandate how it directs its resources.
In addition, petitioners have not persuaded us that failure to reassign
civic courtrooms at the Civic Center Courthouse to hear criminal trials
precludes respondent court’s good cause finding. In making its good cause
finding, respondent court noted that use of the Civic Center Courthouse was
not a viable option for felony or violent misdemeanor cases because of the
inability to provide adequate security. It also noted there were not enough
bailiffs to staff each courtroom. Thus, only nonviolent misdemeanor trials
were the only criminal matters that could be held there, and some had since
reopening. With its returns, the District Attorney supplied the declaration of
Chief Kevin McConnell, the Chief Deputy with the San Francisco Sheriff’s
Office, who oversees respondent’s security at both its Hall of Justice criminal
courthouse and the Civic Center Courthouse. Chief McConnell stated the
Civic Center Courthouse lacked security devices designed to prevent escape,
which are features of the Hall of Justice. For additional in-custody criminal
matters at the Civic Center Courthouse, additional holding cells would need
to be constructed, and various locks and cameras, secure entrances, and
additional emergency communication devices would need to be installed. In
addition, thirteen more full-time Sheriff staff would be needed to staff

32
additional criminal matters at the Civic Center Courthouse. These security
and structural concerns related to the Civic Center Courthouse provide
further reason to not fault respondent court from not assigning additional
criminal matters there.
We respectfully disagree with the dissent’s reliance on People v. Echols
(1954) 125 Cal.App.2d 810, 818 (Echols) and Sigle v. Superior Court (1954)
125 Cal.App.2d 747, 748 (Sigle), to argue that good cause has not been shown
because respondent court had departments that could have been but were not
used to try petitioners’ cases. The delays in Echols and Sigle arose because
there were not enough judges for the criminal court. (See Echols, supra, 125
Cal.App.2d at p. 813 [trial court observations that there were insufficient
judges and not all departments of superior court were “fully manned or
occupied”]; Sigle, supra, 125 Cal.App.2d at pp. 748–749.) Thus, they better
reflect the type of chronic condition attributable to the fault or neglect of the
state that generally does not constitute good cause. More critically, neither
case came on the heels of pandemic which shuttered or severely constrained
court operations for a 15-month period and which was not the fault of the
state. As such, neither Echols nor Sigle addressed a court’s response to the
impact of the type of exceptional and extraordinary event that is currently
facing respondent court. In short, we disagree with the dissent’s assessment
that the situation before respondent court is akin to the predicament the
court was in in 1954 when Echols and Sigle were decided or that the good
cause analysis in those cases applies here.
In sum and in consideration of the totality of the circumstances, we
conclude that respondent court’s backlog which has delayed petitioners’ trials
was the result of exceptional circumstances arising from the COVID-19
pandemic. Accordingly, the trial court did not abuse its discretion in finding

33
good cause existed to continue Valdivia Torres’s trial on August 16 and
September 2, and to continue Hernandez-Valenzuela’s trial on September 24,
and thus made no error in denying their’ motions to dismiss under section
1382.
Having reached this decision, we, like respondent court and other
courts which have recently confronted motions to dismiss brought by
defendants on speedy trial grounds, are mindful that the right to a speedy
and public jury trial is among the most important protections guaranteed by
our constitution and one that may not be cast aside during times of
uncertainty. (See United States v. Olsen (9th Cir. 2022) 21 F.4th 1036, 1049.)
Petitioners have alleged that people incarcerated in the San Francisco
County Jail face harsh conditions of confinement that coupled with the
uncertainty about when trial will come, lead to grave mental suffering.
However, the COVID-19 pandemic presented trial courts with unprecedent
challenges, including when and how to conduct jury trials without
endangering public health and safety while not undermining defendants’
right to a jury trial. The challenges faced by trial courts have been made
even more difficult and frustrating by the unpredictable course of the
pandemic. The emergence of new variants, the regular changes to health
orders and the attendant restrictions on workplaces and public gatherings,
and the pandemic’s unknown duration have undoubtedly made courtroom
administration far from straightforward. For respondent court, those
challenges appear to have been acute based on its single criminal courthouse
at the Hall of Justice and the nature of that structure. We acknowledge
respondent court’s efforts to address these formidable challenges in a
constantly changing pandemic environment. After fifteen months of
constrained operations, respondent court’s substantial backlog is neither

34
surprising nor unreasonable and in our view readily attributable to the
pandemic. The manner in which respondent court sought to address these
cases was also not unreasonable and a response necessitated by the
pandemic. When Valdivia Torres’s case was called on August 16 and
September 2—only seven and nine weeks following the court’s reopening—
and when Hernandez-Valenzuela’s case was called on September 24—twelve
weeks following the reopening—their trials were regrettably but
understandably delayed by this pandemic-induced backlog.
Even so, we agree with petitioners that respondent court cannot turn to
the pandemic and “perpetually cite ‘exceptional circumstances’ to avoid
dismissal under section 1382.” At some future point, should respondent
court’s backlog persist while courtrooms remain dark and unused for long
stretches of time, a backlog that originated with the pandemic could
transform into one that persists or grows due to court administration, or the
nonuse of available judicial resources. Here, we only decide that on August
16, September 2, and September 24, that point was not reached, and we
decline to adopt any outside time limitation or metric that establishes such a
point.
Again, we commend respondent court along with its justice partners for
making significant efforts to bring its criminal cases to trial in light of
constitutional and statutory requirements in the context of an unprecedented
and unpredictable pandemic. However, in light of its apparently growing
backlog of pending criminal trials, we also urge respondent court to consider
even more measures to adopt, which could include but are not limited to
expanding the number of trial courtrooms in the Hall of Justice beyond the
number that was standard pre-pandemic, reassigning additional judicial
officers from other departments in the Civic Center Courthouse or Hall of

35
Justice, or using visiting or retired judges to cover courtroom vacancies.
Respondent court’s backlog which was borne of exceptional circumstances
must be met with an equally exceptional response to ensure that our
recognition of a defendant’s speedy trial rights as a critical constitutional
protection is not merely lip service.
DISPOSITION
The petitions for writ of mandate or prohibition are denied, and the
orders to show cause discharged.

36
 _________________________
Petrou, J.

I CONCUR:

_________________________
Rodríguez, J.

37
TUCHER, P.J., Dissenting:
I agree with much of what the majority has written, particularly the
peroration with which it closes: “Respondent court’s backlog which was borne
of exceptional circumstances must be met with an equally exceptional
response” if the speedy trial rights of criminal defendants are to be honored.
I commend respondent court for having conducted felony trials for in-custody
defendants through the most difficult months of Covid-19 but am confounded
by its failure to try more of these cases after fully reopening in June 2021.
Three months after reopening, on two different days in September 2021,
petitioners appeared as in-custody defendants on the trial calendar,
announced they were ready for trial, and objected as their cases were
continued months into the future. For both men, the statutory period during
which they were supposed to have been brought to trial had run. (See Pen.
Code, § 1382, subd. (a)(2).) On both dates when their cases were called for
trial, multiple trial courtrooms in the Hall of Justice were not busy trying
cases. Indeed, the record shows that half of the 11 courtrooms designated as
trial departments in the Hall of Justice tried no cases in the weeks before or
after these two defendants were told there was no courtroom available to try
their case. Under the circumstances and as set forth more fully below, I
conclude respondent court’s “good cause” finding was an abuse of discretion.
BACKGROUND
San Francisco has 56 active judges assigned to courtrooms around the
city, 22 of them in the Hall of Justice, where half of these are designated for
holding criminal trials. 1 Historically, respondent court has also held some

1 I take judicial notice of Exhibit 26 in support of petitioners’ motions to
dismiss, a San Francisco Superior Court document dated August 23, 2021
specifying which judge is assigned to preside over what kind of proceedings in
1
criminal trials at the Civic Center Courthouse, but since the onset of Covid-
19 the only criminal trials held in the Civic Center Courthouse have been
nonviolent misdemeanor trials. Holding cells there are allocated entirely to
family court and juvenile dependency proceedings, and the Sheriff’s
Department pleads lack of resources to staff additional criminal trials at the
Civic Center Courthouse even for cases in which no defendant or witness is in
custody. This means that the 11 courtrooms in the Hall of Justice designated
for criminal trials are the only courtrooms in San Francisco where felony
trials and trials of violent misdemeanors are taking place.
Covid-19 was exceedingly disruptive to court operations. For a 15-
month period beginning mid-March 2020, respondent court operated at a
sharply reduced capacity to comply with various health mandates. During
this period, the court was able to conduct some felony trials for in-custody
defendants—an average of about one per month—and some misdemeanor
trials for defendants who were out of custody. Then in mid-June 2021 the
San Francisco health officer lifted indoor capacity limits and social distancing
requirements, and the court publicly announced it was returning to “pre-
pandemic” levels of service on June 28. By the time of reopening, a
predictably large number of no-time-waiver cases awaited trial: 153 in-
custody felony cases, 197 out-of-custody felony cases, and 212 misdemeanor
cases.

each department. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) According to
these published judicial assignments, Departments 10, 13, 16, 19, 21, and 24-
29 in the Hall of Justice are designated to hear criminal trials, although some
of these departments also hear motions or other types of hearings, especially
on Fridays.

2
 Yet in the months that followed, respondent court sent the most serious
of these cases out to trial at a leisurely pace. In the first three months after
June 28, the court sent out only three in-custody felony trials, one of which
resolved before jury selection and two of which were tried. This paltry record
does not improve if we widen the lens: from reopening until January 13,
2022—a period of six-and-a-half months—respondent court tried to verdict
(or hung jury) just five felony cases for in-custody defendants. 2 These
numbers—two trials in three months and five trials in six-and-a-half months
for the entire court—mean felony trials for in-custody defendants occurred
slightly less frequently after reopening than they did during the most
disruptive period of the pandemic.
Respondent court did conduct other criminal trials during this same
period. From reopening until October 1, 2021, the court held three felony
trials and seven misdemeanor trials for out-of-custody defendants, bringing
the court-wide total of trials over this three-month period to twelve. Again,
widening the lens does not substantially improve the picture: during the first
six-and-a-half months following reopening, the court tried 11 out-of-custody
felony defendants to verdict or hung jury, bringing the court’s total number of
felony trials to 16. This is an average of slightly more than two per month for
the entire court. Although the court was also trying misdemeanor cases
during this period, the total number of criminal trials the court has

2 Although case information after about October 1, 2021 was not before
respondent court when it denied petitioners’ speedy trial motions, the parties
have stipulated that we may consider their joint exhibit listing criminal jury
trials held by respondent court from March 16, 2020 to January 13, 2022.

3
conducted since reopening is dramatically lower than the number of criminal
trials it held under “pre-pandemic levels” of service. 3
The pace at which these cases were assigned out for trial was so slow
that the backlog of felony cases actually grew instead of shrinking in the
months following reopening. From June 29 to September 10, 2021, the
number of in-custody defendants awaiting felony no-time-waiver trials
climbed from 153 to 218. The number for out-of-custody felony defendants
rose from 197 to 217. Only the misdemeanor backlog shrank during this
period, from 212 to 137 no-time-waived cases.
As the felony backlog grew so, too, did the length of time defendants in
the county jail had to wait before their cases were sent out for trial. The
three in-custody defendants whose felony cases were sent to trial courtrooms
in June 2021 each waited about five-and-a-half months past their statutory
last days for their chance at a trial. The three in-custody defendants whose
felony cases were sent out in December 2021 waited eight months past their
statutory last days. Since the statutory last day falls 60 days after a
defendant is arraigned on an information or withdraws a general time
waiver, the eight months of additional delay mean that defendants were
waiting five times as long for their trials to begin in December 2021 as the
maximum time the statute would normally allow (i.e., 10 months, not two).
(Pen. Code, § 1382, subd. (a)(2).)

3 The parties report 28 criminal cases (felony or misdemeanor) tried to
verdict or hung jury from reopening until January 13, 2022, plus one case
that ended in a mistrial for unspecified reasons and six trials begun but not
concluded by January 13. This is a small fraction of the number of criminal
jury trials conducted between late 2009 and early 2018, when respondent
court averaged 285 criminal jury trials per year, according to the People.

4
 Instead of reacting with urgency to the backlog that built up through
June 2021, respondent court allowed the trial departments at the Hall of
Justice to limp along at half strength after reopening. We see this when we
look at the particular dates in September on which petitioners’ cases were
called for trial.
Petitioner Valdivia Torres’s case was called on September 2, 2021, his
second time on the trial calendar since his statutory last day came and went
earlier in the summer. On September 2, 2021, there were three misdemeanor
trials underway in the Hall of Justice and one trial in an out-of-custody
felony case. That’s all. Just four of the 11 trial departments were holding
trials, and none of them for an in-custody defendant facing felony charges.
The record reveals that Department 16 had not been in trial since August 20,
and would not be again until at least November. Department 19, which had
held no trials during the first four weeks after reopening, was in the midst of
a 50-day trial hiatus. Department 21 handled no trials in all of September.
Department 27 had not been sent a trial since July 21, and would not be sent
another one until October 8. As for Departments 26 and 29, although these
were ostensibly trial departments, neither had been sent a single trial since
before respondent court reopened in June, and Department 29 would not see
a trial until mid-October. Nothing in the record explains these long periods
in which so many “trial” departments were sent no cases to try, and in spite
of this under-used capacity, respondent court told petitioner Valdivia Torres
on September 2 that it did not have a courtroom available to try his case.
The court continued his case until December and in December, again over
Valdivia Torres’s objection, continued it until February. By the time Valdivia

5
Torres’s case was finally called for trial on February 22, 2022, it was eight
months after his statutory last day.
The picture was similar on September 24, 2021, when Hernandez-
Valenzuela’s case appeared on the trial calendar on its statutory last day. On
September 24, Hernandez-Valenzuela had been in custody for almost four
months, held without bail. Department 25 was in the middle of a felony trial,
and Department 13 was trying a misdemeanor case. Department 10 had
begun and recessed a trial that would soon resolve, but no other criminal trial
was underway anywhere in the Hall of Justice. That is, eight of 11 “trial”
departments were not in trial. The record reveals that Departments 16, 19,
21, 27 and 29 were in the midst of weeks-long (or months-long) periods
without a single trial, and Departments 24, 26, and 28 were trial-free for at
least that day. Yet Hernandez-Valenzuela was told no courtroom was
available for his trial because the courtrooms were needed for other, even
older, trials. He was sent back to the county jail to await a new court date in
late February. Now in March, Hernandez-Valenzuela is more than five
months past his statutory last day, and still we have not heard that he has
been brought to trial.
ANALYSIS
Whether there is “good cause” for delaying a trial past the statutory
last day is a discretionary decision that requires the trial court to “ ‘ “apply[]
principles of common sense to the totality of circumstances.” ’ ” (People v.
Hajjaj (2010) 50 Cal.4th 1184, 1197 (Hajjaj).) In exercising this discretion,
courts consider factors such as “ ‘(1) the nature and strength of the
justification for the delay, (2) the duration of the delay, and (3) the prejudice

6
to either the defendant or the prosecution that is likely to result from the
delay.’ ” (Ibid.)
The duration of the delays in petitioners’ cases and the resulting
prejudice are both significant. Each petitioner has languished in jail for
multiples of the 60-day period the Legislature established as the presumptive
maximum for a speedy trial. (See Pen. Code, § 1382, subd. (a)(2).) “A
defendant who is incarcerated pending trial . . . suffers particular harm when
he is denied his right to trial within the statutory period.” (People v. Johnson
(1980) 26 Cal.3d 557, 569 (Johnson).) 4 For this reason, the Legislature
directs that felony cases for in-custody defendants should be given highest
priority among criminal cases. (Pen. Code, § 1048, subd. (a).)
Respondent court nonetheless found “good cause” because it considered
the delays in Valdivia Torres’s and Hernandez-Valenzuela’s cases as amply
justified by the extraordinary backlog in no-time-waived cases that resulted
from Covid-19 disruptions. I cannot agree. Certainly, the prevalence in our
community of a highly infectious disease like Covid-19 constituted good cause
for continuing trials when it made the convening of public trials impossible. I
joined the decision in Stanley v. Superior Court (2020) 50 Cal.App.5th 164 on
that basis. But nobody argues Covid-19 prevented respondent court from
trying criminal cases in the summer and fall of 2021, so the pandemic is not a

4 This prolonged loss of liberty while awaiting trial is the primary
prejudice, but both petitioners also suffer additional detriment because of
Covid-19 precautions at the County Jail. For instance, according to
declarations petitioners submitted, jail inmates have been unable to have in-
person visits with family members, time spent out of their cells is severely
restricted, and opportunities to exercise are sharply limited. The pandemic
may have made such measures advisable, but these hardships only magnify
the urgency of bringing cases for in-custody defendants to trial.

7
sufficient explanation for not bringing petitioners to trial. Respondent court
has explained that Covid-19-related resource constraints prevent it, for the
time being, from holding felony trials in the Civic Center Courthouse, a
factual determination I accept given our standard of review. But nobody
suggests that Covid-19 interferes with holding jury trials in the 11
courtrooms in the Hall of Justice that are designated for that purpose.
Perhaps to explain its under-utilization of that capacity, respondent court
emphasizes that since reopening it has called a good many cases on the
criminal trial calendar that have settled or been continued, so that those
trials did not proceed. But if so many cases were settling and being
continued, the court does not explain why it did not call more cases for trial,
sending those that did not settle or request continuances out to trial
departments, where one case could begin trial and other(s) could trail in case
the lead case settled. It is true that having a courtroom available for, but not
immediately engaged in, trying a case can facilitate settlement by lending
urgency to settlement negotiations. But there is no reason to leave multiple
vacant courtrooms for that purpose.
Moreover, nobody has suggested the trial departments that were not
trying cases in September were busy settling them. When we invited
respondent court to explain why petitioners’ cases could not have been sent
out for trial on August 16 (when Valdivia Torres’s case was earlier on the
trial calendar), on September 2, or on September 24, we were not told that
trial departments were facilitating settlement negotiations. Nor were we told
they were handling time-sensitive preliminary hearings or other matters that
took precedence. Instead, respondent court reported that on August 16 three
judges in trial departments at the Hall of Justice were “on pre-approved

8
absence,” and a fourth was covering for the pre-approved absence of a judge
down the hall. Department 29 was simply “[v]acant.” On September 2, two
trial judges were “on pre-approved absence,” a third was covering for a
neighbor’s pre-approved absence, a fourth lacked a courtroom clerk, and
Department 29 was once again “[v]acant.” 5 On September 24, one judge was
“on pre-approved absence,” one was covering for a neighbor’s pre-approved
absence, two were covering other calendars, and one had a courtroom clerk
who had called in sick. This recitation does not convey that fully utilizing the
11 trial courtrooms in the Hall of Justice was a high priority for respondent
court on the dates in question.
If the trial departments in the Hall of Justice had been consistently
operating at something approaching full capacity, I would have no quarrel
with a good-cause finding for defendants whose cases still could not find an
available courtroom. Of course, a backlog of hundreds of cases, built up over
15 months, will not dissipate in mere days or weeks. Quite reasonably,
respondent court generally prioritized older cases over newer ones. Also
reasonably, respondent court set aside—or at least reported it had set aside—
three trial courtrooms to try in-custody felonies even when out-of-custody
defendants had older cases, in light of the liberty interest of defendants being
detained pre-trial. 6 But none of these explanations justifies Valdivia Torres

5 In addition to these “dark” courtrooms, respondent court reported one
“open” courtroom on September 2, which was scheduled the next day to
conclude a multi-part preliminary hearing. But according to petitioner
Valdivia Torres, the court had already heard all of the evidence in the
preliminary hearing and could have decided whether to issue its holding
order during a recess, had it been sent a jury trial.
6 Said the trial court, in finding good cause to continue Valdivia Torres’s
trial in August 2021: “The plan is to have three courtrooms at the Hall of
Justice to continue handling in custody no time waiver trials, and the

9
and Hernandez-Valenzuela not being brought to trial when their cases were
called in September 2021. Respondent court was not chipping away at its
backlog; it was allowing the backlog to grow. It was not fully engaged in
trying cases that were older than petitioners’; more than half the trial
courtrooms in the Hall of Justice were not conducting trials at all. And far
from setting aside three departments for in-custody felony trials, respondent
court sent out only a single in-custody felony defendant for trial during the
entire month of September.
I acknowledge that no judge should be required to preside over back-to-
back trials for months on end, and that non-trial work may on occasion take
precedence. (See, e.g., Bullock v. Superior Court (2020) 51 Cal.App.5th 134,
156 [discussing preliminary hearings].) Vacations, sick leave, and other court
needs must be accommodated, but if respondent court is only able to hold
felony trials in 11 of its 56 courtrooms, then it behooves the court to manage
its resources in such a way as to operate those 11 trial departments at, or
near, full capacity. If a judge in one of the trial departments takes a vacation
or is out on extended leave, another active judge from elsewhere in the court
can be substituted in to preside over criminal trials until the assigned judge
returns. Or the court can try requesting the assistance of a retired judge for
a month or two. (See Temporary Assigned Judges Program Factsheet (July
12, 2020) [as of
Mar. 3, 2022].) And when calendars elsewhere in the Hall of Justice need

remainder to handle out of custody felony and violent misdemeanor trials.”
The court intended to reserve three courtrooms for in-custody felony
defendants, even when they had a later last day than an out-of-custody
defendant, because “those who await trial with a loss of liberty have a
heightened need for resolution [compared to] those who await trial out of
custody.”

10
covering, judges who normally work in the Civic Center Courthouse can be
sent as substitutes so as not to deprive the criminal trial courtrooms of
necessary personnel. Similarly, if a courtroom clerk calls in sick, then a clerk
who is cross-trained to work criminal trials can be sent to fill in. Although
respondent court’s manager for criminal courtroom clerks submitted a
declaration detailing clerk absences in September, she did not address the
crucial question of whether respondent court had clerks trained to work in
criminal trial courtrooms who could have been redeployed there to help. It is
the People’s burden to prove that it was not possible to bring petitioners to
trial when their cases were called in September (People v. Echols (1954) 125
Cal.App.2d 810, 816 (Echols), disapproved on another ground in People v.
Wilson (1963) 60 Cal.2d 139, 152), and the People have not explained why
common-sense solutions such as these could not have been used to get more
criminal cases out to trial.
The law of this state has for almost a century required that “criminal
cases be given precedence over civil cases.” (People v. Engram (2010) 50
Cal.4th 1131, 1137 (Engram); Pen. Code, § 1050.) If a superior court “does
not devote a reasonable proportion of its resources to the trial of criminal
cases” it cannot rely on congestion in its criminal courtrooms as good cause
for failing to provide defendants a speedy trial. (Engram, at pp. 1137–1138;
see also Echols, supra, 125 Cal.App.2d at p. 816.) Numerous “cases establish
that when the lack of a judge or courtroom available to timely bring a
criminal defendant to trial is fairly and reasonably attributable to the fault or
neglect of the state, that circumstance does not constitute good cause to delay
the defendant’s trial.” (Engram, at p. 1138.)

11
 Respondent court has been in this predicament before, though perhaps
not for many years. In June 1954, two divisions of our court decided cases in
which criminal defendants in San Francisco Superior Court did not receive
speedy trials, reportedly because of crowded conditions in the criminal
courtrooms. (Echols, 125 Cal.App.2d at p. 818; Sigle v. Superior Court (1954)
125 Cal.App.2d 747, 748 (Sigle).) In Sigle, the court rejected the trial court’s
finding of good cause, explaining that “a greater number of judges should
have been assigned to departments handling criminal matters. . . . [T]he
showing that a large number of civil cases were pending does not excuse the
failure to assign a sufficient number of judges to handle criminal matters.”
(Ibid.) Similarly, Echols held that a defendant “kept waiting until
approximately 50 days after” his statutory last day should have had his case
dismissed because good cause was not shown. (Echols, at p. 815.) The Echols
court explained, in 1954 San Francisco Superior Court had 23 departments,
of which four tried criminal cases. (Id. at p. 815.) “With 23 departments to
choose from, in order to protect the fundamental rights of persons charged
with crime more departments could be assigned criminal cases.” (Id. at
p. 816.) The same is true today. With 56 active judges to choose from, there
must have been 11 who could have presided over criminal trials in the Hall of
Justice “in order to protect the fundamental rights of persons charged with
crime.” (Ibid.)
Although Echols and Sigle are old, they remain good law on this point.
As recently as 2010, our Supreme Court discussed Echols approvingly, along
with a pair of cases out of Los Angeles County reaching similar conclusions.
(See Engram, supra, 50 Cal.4th at pp. 1156–1157 [discussing Echols, supra,
125 Cal.App.2d 810, Stewart v. Superior Court (1955) 132 Cal.App.2d 536

12
(Stewart), and Dearth v. Superior Court (1940) 40 Cal.App.2d 56, 59
(Dearth)].) Engram was one of two cases in 2010 in which our high court
affirmed that chronic court congestion in Riverside County was not good
cause for continuing a defendant’s trial past the statutory last day. (See
Engram, at p. 1163; Hajjaj, supra, 50 Cal.4th at p. 1198.)
“ ‘ “ ‘[U]nreasonable delay in run-of-the-mill criminal cases cannot be justified
by simply asserting that the public resources provided by the State’s
criminal-justice system are limited and that each case must await its
turn.’ ” ’ ” (Ibid.)
The backlog in Riverside County was more extensive and long-lasting
than the backlog with which respondent court currently contends, but so, too,
were the measures undertaken to arrest the backlog there. The Chief Justice
assigned “numerous retired judges and active judges from outside the county”
to try cases, and Riverside Superior Court “itself devoted virtually all of its
resources—superior court judges and courtrooms—ordinarily intended for the
trial of civil cases instead to the trial of criminal cases.” (Engram, supra, 50
Cal.4th at p. 1137.) In spite of this almost single-minded focus on trying
criminal cases in Riverside County, the high court affirmed that “good cause
did not exist under section 1382,” so the criminal proceeding in Engram was
properly dismissed. (Id. at p. 1138.) The Court explained that Riverside
County’s court congestion was attributable to chronic conditions, rather than
exceptional circumstances, and so was “reasonably attributable to the fault or
neglect of the state.” (Id. at pp. 1138, 1165.)
Unlike in Engram, supra, 50 Cal.4th 1131, in the cases before us the
issue of whether respondent court’s backlog was due to chronic congestion or
exceptional circumstances is not dispositive. Here, the pandemic-induced

13
backlog was not the only reason petitioners were denied an earlier trial.
Rather, it was respondent court’s failure to react to this backlog by
concentrating resources on the pressing task of holding criminal trials—
especially criminal trials for incarcerated defendants—that consigned
petitioners to additional and unnecessary weeks of pre-trial detention.
Engram teaches that even concerted efforts to try criminal cases will not
excuse delays caused by court congestion to which the state has long turned a
blind eye. (Id. at p. 1138.) But Engram does not speak to the circumstance
we face here, where “the fault or neglect of the state” takes an entirely
different form. (Ibid.) Riverside Superior Court “properly . . . provided
considerable preference to the trial of [criminal] matters consistent with the
general legislative policy embodied in section 1050.” (Ibid.) Respondent
court’s failure to do likewise fatally undermines its finding of good cause.
Respondent court stated, in denying petitioners’ motions to dismiss,
that it was doing the best it could because advancing all criminal cases every
three or four days would have been untenable. I do not advocate for such a
procedure. It is a strawman, suggesting respondent court takes the view it
should not send a criminal case to trial on any given day if, somewhere in the
backlog, there is an older case that has not yet been sent out—even though
the older case could not be sent out that day because it was not on calendar.
The law imposes no such stricture. Respondent court has broad discretion to
decide how to calendar its criminal cases, consistent with its “duty . . . to
expedite these proceedings to the greatest degree that is consistent with the
ends of justice.” (Pen. Code, § 1050, subd. (a).) But respondent court also has
a statutory and constitutional imperative to provide defendants a speedy
trial, if possible. (Johnson, supra, 26 Cal.3d at p. 561.) I see no basis for

14
finding “good cause” to continue trials after their statutory last day when
multiple trial departments in the Hall of Justice are not conducting trials or
otherwise engaged in time-sensitive work that cannot reasonably be handled
elsewhere. Adopting whatever schedule for calendaring and advancing
criminal trials it thinks is best, respondent court should generally be sending
out to trial the oldest felony cases for in-custody defendants that are on the
calendar on any given day. (Pen. Code, § 1048, subd. (a).) That some of these
cases may be marginally less old than the oldest case in the court’s backlog
would not be a violation of section 1382. Rather, it would be a modest
departure from a rule of seniority to ensure trial departments in the Hall of
Justice are fully utilized, which is, after all, the only way to bring the backlog
down for all defendants as quickly as possible.
More than 40 years ago, our high court held that a defense lawyer’s
scheduling conflicts do not constitute good cause for delaying a trial.
(Johnson, supra, 26 Cal.3d at p. 572.) If the deputy public defender assigned
a case has a conflicting trial obligation, “the court should inquire into
whether the assigned deputy could be replaced by another deputy or
appointed counsel who would be able to bring the case to trial within the
statutory period.” (Ibid.) Only if such a substitution is not possible may the
court continue the case, Johnson explained, and only then does the court
“inquire whether the delay is attributable to the fault or neglect of the state.”
(Johnson, at p. 573.) The same analysis should apply here when a particular
trial judge or courtroom clerk is not available to try a time-not-waived case.
Respondent court should have asked, but did not, the crucial question
whether, to the extent criminal trial departments were short a judge or a
clerk, some other judge or clerk could have been brought in to ensure that no-

15
time-waived criminal trials would proceed. And because the court never
explored options for substituting personnel, instead leaving trial courtrooms
sitting empty, we need not reach the question whether the court’s backlog is
more properly characterized as “chronic” or “exceptional.” Either way, the
backlog is not a sufficient explanation for why petitioners were not brought to
trial in September 2021.
Like the courts in the Echols line of cases, I would hold that good cause
to delay petitioners’ trials has not been shown because respondent court had
departments that easily could have been, but were not, used to try their
cases. (Echols, supra, 125 Cal.App.2d 810; Sigle, supra, 125 Cal.App.2d 747;
Stewart, supra, 132 Cal.App.2d 536; Dearth, supra, 40 Cal.App.2d 56.) I
would grant the petitions for writ of mandate or prohibition, require the trial
court to dismiss the pending criminal proceedings, and expect that when
charges were re-filed against these petitioners (see Johnson, supra, 26 Cal.3d
at p. 573), respondent court would handle their cases with a fitting sense of
urgency.

TUCHER, P.J.

16
Trial Court: City and County of San Francisco Superior Court

Trial Judge: Hon. Loretta M. Giorgi

Counsel: Manohar Raju, Public Defender, Matt Gonzalez, Chief
Attorney, Oliver Kroll, Eric Flesichaker and Kathleen
Natividad, Deputy Public Defenders, for Petitioners.

No appearance for Respondent.

Chesa Boudin, District Attorney, Allison MacBeth and
Natalie Fuchs, Assistant District Attorneys, for Real Party
in Interest.

1