People v. Morcos CA2/1

Filed 10/26/22 P. v. Morcos CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B319289

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA094334)
v.

HADY WAEL MORCOS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Cynthia L. Ulfig and Michael Terrell,
Judges. Affirmed.
Law Offices of Gregory Rubel and Gregory Rubel for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
 In March 2020, the People filed a complaint alleging that
defendant and appellant Hady Wael Morcos committed a
burglary. Morcos was incarcerated in state prison at the time the
complaint was filed. On July 13, 2020, Morcos submitted a
written request to be brought to trial on the burglary charge
within 90 days, pursuant to Penal Code1 section 1381. Although
the People filed two requests in July and September 2020 to have
Morcos transported to the courthouse, Morcos was not brought to
trial within 90 days of July 13, 2020.
On June 16, 2021, Morcos moved to dismiss the charge
because of the People’s failure to adhere to section 1381’s 90-day
deadline. The statute explicitly provides that the trial court
“shall” dismiss the charge if the defendant is not brought to trial
within 90 days of his or her written request. (See § 1381.) On
July 23, 2021, the trial court denied the motion, reasoning that
the COVID-19 pandemic prevented the People from transporting
Morcos to the courthouse prior to the expiration of the statutory
time limit. The court observed that courts across the state were
closed down for most purposes in March 2020 and had minimal
staffing at that time; during the 15–18 months prior to the
hearing on Morcos’s motion, prison officials were not transporting
defendants to the courthouse; and, during that timeframe, there
were COVID breakouts within the prison and jail systems. On
March 9, 2022, Morcos pleaded nolo contendere to one count of
first degree residential burglary and the court sentenced him to
two years in prison.
On appeal, Morcos argues the trial court erred in denying
his motion to dismiss. He relies principally on the fact that

1 Undesignated statutory citations are to the Penal Code.

2
section 1381 does not explicitly provide that the People may avoid
dismissal by showing good cause for delay, in contrast to another
statute that expressly includes a good cause exception to a 60-day
statutory deadline to bring a defendant to trial (i.e., § 1382,
subd. (a)).
We conclude that under the limited circumstances of this
case, the trial court did not err in denying Morcos’s motion. In so
doing, we acknowledge that the literal text of section 1381
supports Morcos’s position that the statute required the trial
court to dismiss the burglary charge regardless of whether the
COVID-19 pandemic prevented the People from bringing him to
trial within the 90-day statutory deadline. Nevertheless, the
instant appeal presents a circumstance in which the literal
meaning of a statute must give way to the imperative of
protecting public health in the midst of an unprecedented
pandemic involving a deadly and contagious disease.2 Were we
to hold otherwise, then state officials would be presented with a
Hobson’s choice of either complying with the 90-day time limit or
undertaking measures critical to preventing the spread of this
deadly disease.
As our colleagues in Division Eight noted in another case
involving this public health crisis: “The words of Thomas
Jefferson bear weight. ‘A strict observance of the written law is
doubtless one of the high duties of a good citizen, but it is not the

2 (See People v. Breceda (2022) 76 Cal.App.5th 71, 74–75,
91 (Breceda) [characterizing the COVID-19 pandemic as “an
unprecedented global health crisis” involving “a mysterious,
contagious, and deadly virus,” and noting that the Chief Justice
issued an order “stating ‘ “[c]ourts are clearly places of high risk
during this pandemic because they” ’ are well populated”].)

3
highest. The laws of necessity, of self-preservation, of saving our
country when in danger, are of higher obligation. To lose our
country by a scrupulous adherence to the written law, would be
to lose the law itself, with life, liberty, property and all those who
are enjoying them with us; thus absurdly sacrificing the ends to
the means.’ [Citation.]”3
In accordance with Jefferson’s observations, we conclude
that an aid to statutory construction called the impossibility
doctrine supports the trial court’s ruling. Specifically, case law
from the civil and criminal contexts establishes that a court may
excuse a party’s failure to comply with a statutory mandate on
the ground of impossibility if doing so reflects the proper
understanding of the provision’s underlying legislative intent.
We conclude that the impossibility doctrine applies to
section 1381 because the Legislature enacted the statute to
curtail state officials’ willful or negligent failure to safeguard a
defendant’s speedy trial right, and not to penalize the People
when compliance with the 90-day limit was impossible.
This case is unique in another significant respect, to wit,
Morcos makes no serious effort to rebut the trial court’s
presumptively correct finding that the COVID-19 pandemic
prevented the People from bringing him to trial within 90 days of
submission of his written request. Instead of demonstrating that
he could have been safely brought to trial during that timeframe,
Morcos resorts to a statute that allows for two-way electronic

3 (People v. Edwards (2022) 76 Cal.App.5th 523, 526–527
(Edwards); see id. at p. 525 [noting Edwards concerned whether
a trial court “violate[d] the confrontation clause . . . [by]
order[ing] trial witnesses to wear masks during the current
pandemic”].)

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audiovideo communication for proceedings other than trials, he
claims to have been in quarantine for only part of the 90-day
period, and he questions the credibility of a notation in the court
record that medical staff were unable to grant his request for
medication that he takes on a daily basis.
Thus, under these limited circumstances in which state
officials were confronted with an unprecedented public health
crisis and the appealing defendant has made no meaningful effort
to show it was possible to bring him to trial timely and safely, we
affirm the judgment.

PROCEDURAL BACKGROUND4
We summarize only those aspects of the procedural history
that are relevant to our disposition of the instant appeal.
On or about March 13, 2020, the People filed a complaint
alleging that Morcos committed a burglary. The day after the
complaint was filed, a judicial officer signed the People’s request

4 Our procedural background is derived in part from
admissions in the parties’ appellate briefing and assertions the
Attorney General makes in his respondent’s brief that Morcos
does not dispute in his reply. (See Williams v. Superior Court
(1964) 226 Cal.App.2d 666, 668, 674 [criminal case in which the
Court of Appeal stated: “ ‘An express concession or assertion in a
brief is frequently treated as an admission of a legal or factual
point, controlling in the disposition of the case.’ ”]; Reygoza v.
Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal
case in which the Court of Appeal assumed that an assertion
made by respondent was correct because the “defendant did not
dispute respondent’s claim in his reply”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point”].)

5
to have Morcos transported to the courthouse in connection with
this case. On March 27, 2020, a prison statewide tracking sheet
reported that Morcos was housed in a quarantine area for
14 days, and that several of the inmates in the quarantine had
flu-like symptoms.
On July 13, 2020, Morcos submitted a written request to be
brought to trial pursuant to section 1381. On July 22, 2020, the
People filed a second request to have Morcos transported to the
courthouse, which was signed by a judicial officer on
July 24, 2020. Affixed to one of the court copies of this order is a
note stating that, “ ‘for whatever reason the prisons did not
transport.’ ” An August 31, 2020 prison statewide tracking sheet
reported the prison system was unable to transport Morcos
because he was placed in a COVID-19 quarantine.5 According to
a September 2, 2020 note contained in the court file, the sheriff’s
department reported that the state prison did not transport
Morcos to the courthouse.
On September 9, 2020, the People filed another request to
have Morcos transported to the courthouse, which was signed by
a judicial officer on September 11, 2020. A note in the court file
dated October 7, 2020 reported that the medical staff at an
institution identified as “ ‘SCC R&R’ ” was “ ‘unable to clear
medication prisoner Morcos requires daily.’ ”
On June 16, 2021, Morcos filed a motion to dismiss
pursuant to section 1381. On July 23, 2021, the People filed an
opposition to Morcos’s motion.

5 This August 31, 2020 prison statewide tracking sheet
indicated that Morcos was placed in quarantine on
September 11, 2020. The Attorney General admits the record
contains “no explanation as to th[is] date discrepanc[y].”

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 The trial court heard Morcos’s motion on July 30, 2021.
Morcos was in court and apparently no longer in custody.6 Upon
hearing oral argument from defense counsel,7 the court denied
the motion due to “the extraordinary circumstances of 2020 and
COVID-19 and the global pandemic . . . .” In rendering its
decision, the court remarked that “on March 19th of 2020, all of
L.A. County and the State of California shut down” and “[t]he
courts were closed except for very minimal . . . staffing”; “over the
past 15, 18 months . . . [prison officials] have not been
transporting people” and there were “COVID breakouts within
the jail system” and “the state prison system”; and the People
“made every reasonable attempt to have [Morcos] brought forth
on these charges” but, “based on the global pandemic, he was
unable to be brought to the courthouse.”
After Morcos was held on to answer on the burglary charge,
the People filed an information charging Morcos with one count of
first degree residential burglary, in violation of section 459. On
March 9, 2022, Morcos pleaded nolo contendere to one count of
first degree residential burglary and was sentenced to the low

6 In his opening brief, Morcos asserts that he was “released
from custody on or about April 7, 2021,” and that “he was
arraigned on the Complaint” on May 10, 2021. Morcos does not
support these assertions with any citation to the record. (See
People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 [noting
that an appellate court may “ ‘decline to consider any factual
assertion unsupported by record citation at the point where it is
asserted’ ”].) Nevertheless, the reporter’s transcript indicates
that Morcos had been released from custody at some point prior
to the July 30, 2021 hearing on his motion.
7 The People elected not to argue at the hearing on the
motion.

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term of two years in prison, pursuant to a plea agreement with
the People. On March 14, 2022, Morcos filed a notice of appeal
and a request for a certificate of probable cause. The trial court
granted the request for a certificate of probable cause on March
21, 2022.

DISCUSSION
Section 1381 provides in pertinent part: “If a charge is filed
against a person during the time the person is serving a sentence
in any state prison . . . it is hereby made mandatory upon the
district attorney of the county in which the charge is filed to bring
it to trial within 90 days after the person shall have delivered to
said district attorney written notice of the place of his or her
imprisonment or commitment and his or her desire to be brought
to trial upon the charge, unless a continuance is requested or
consented to by the person, in open court, and the request or
consent entered upon the minutes of the court, in which event the
90-day period shall commence to run anew from the date to which
the request or consent continued the trial. In the event the
action is not brought to trial within the 90 days the court in
which the action is pending shall, on motion or suggestion of
the . . . defendant or . . . his or her counsel . . . dismiss the
charge.”8 (§ 1381.)
Morcos contends section 1381 required the trial court to
dismiss the complaint against him because the People did not

8 Although Morcos and the Attorney General agree that
section 1381 applies, neither side identifies Morcos’s prior
conviction(s) or the length of the prison sentence that he was
serving at the time the People filed the instant criminal
complaint.

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bring him to trial within 90 days of the written request that he
submitted on July 13, 2020. Morcos points out that in opposition
to his motion, the People argued that they tried several times to
comply with section 1381 but were unable due to COVID-19
related reasons. Morcos asserts the People’s argument is
unavailing because section 1381 does not contain an exception
that allows the People to avoid dismissal on the ground of good
cause for the delay. Morcos further argues that the state’s
emergency orders concerning the COVID-19 pandemic do not
excuse noncompliance with section 1381’s 90-day deadline.
Additionally, Morcos claims that “[w]hile transportation of
[him] . . . from the state prison to court may have been
challenging due to COVID-19 related reasons, there was a viable
option: . . . section 977.2(a), which” allows certain proceedings to
be conducted by two-way electronic audiovideo communication.
For the reasons discussed below, we conclude that section 1381
tacitly empowered the trial court to deny Morcos’s motion on the
basis that compliance with the statutory 90-day deadline was not
possible.
As a preliminary matter, we observe that Morcos fails to
controvert the factual findings supporting the trial court’s order
denying his motion to dismiss. In his reply, Morcos asserts that
he was not “in COVID-19 quarantine . . . for the entire 90 day
period,” and he intimates that “the October 7, 2020 . . . note in
the Court’s file stating that [he] could not be transported because
he requires daily medication” lacks credibility. Yet, Morcos offers
no response to the trial court’s findings that “on March 19th of
2020, all of L.A. County and the State of California shut down”
and the courts were closed for most purposes with minimal
staffing; the state prisons were not transporting inmates to the

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courts “over the . . . 15[–]18 month” period preceding the hearing
on the motion to dismiss; and, during that timeframe, there were
“COVID breakouts within the jail system” and “the state prison
system.” Nor does Morcos explain why these findings fall short of
supporting the trial court’s conclusion that “he was unable to be
brought to the courthouse” because of “the global pandemic.”
Thus, Morcos has not discharged his burden of affirmatively
demonstrating the court erred in finding the COVID-19 pandemic
prevented the People from securing his physical presence within
section 1381’s 90-day deadline.9
To put the trial court’s factual findings in context, we
further note that the Chief Justice of our Supreme Court issued
an order suspending all jury trials for 60 days on March 23, 2020,
in part because “ ‘[c]ourt proceedings require gatherings of court
staff, litigants, attorneys, witnesses, and juries, well in excess of
the numbers allowed for gathering under [then-]current executive
and health orders’ ” (see Breceda, supra, 76 Cal.App.5th at
pp. 82–83); on April 29, 2020, the Chief Justice extended that
jury trial suspension from 60 to 90 days (see id. at p. 83); and, by
the time section 1381’s 90-day period elapsed in the instant case
in October 2020, the pandemic had killed over 200,000

9 (See People v. Sanghera (2006) 139 Cal.App.4th 1567,
1573 (Sanghera) [“Perhaps the most fundamental rule of
appellate law is that the judgment challenged on appeal is
presumed correct, and it is the appellant’s burden to
affirmatively demonstrate error.”]; People v. Arter (2017)
19 Cal.App.5th Supp. 1, 6 (Arter) [identifying “three fundamental
principles of appellate review: (1) a judgment is presumed
correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error”].)

10
Americans. (See Edwards, supra, 76 Cal.App.5th at p. 526.)
Although these facts are not essential to our disposition of this
appeal, they further support the trial court’s finding that the
dangers posed by the pandemic prevented the People from safely
bringing Morcos to trial within 90 days of July 13, 2020.
Furthermore, section 977.2, subdivision (a) does not
support Morcos’s claim that the People could have brought him to
trial within the 90-day period. That provision states that “in any
case in which the defendant is charged with a misdemeanor or a
felony and is currently incarcerated in the state prison, the
Department of Corrections and Rehabilitation may arrange for
all court appearances in superior court, except for the preliminary
hearing and trial, to be conducted by two-way electronic
audiovideo communication between the defendant and the
courtroom in lieu of the physical presence of the defendant in the
courtroom.” (See § 977.2, subd. (a), italics added.)
Admittedly, section 977.2, subdivision (a) also provides: “If
the defendant agrees, the preliminary hearing and trial may be
held by two-way electronic audiovideo communication.” (§ 977.2,
subd. (a).) In his opening appellate brief, Morcos excludes this
part of section 977.2, subdivision (a) in quoting that subdivision,
and he does not mention it in his reply; a fortiori, he did not rely
on it or direct us to any evidence that he had agreed or requested
to participate in the trial via two-way electronic audiovideo
communication. Also, Morcos does not argue, let alone show, that
the state prison at which he was housed or the courthouse for his
trial could have accommodated any such remote trial. Given that
the statutory text allowing Morcos to agree to trial via two-way
electronic audiovideo communication was not added to
section 977.2, subdivision (a) until August 6, 2020 (see

11
Stats. 2020, ch. 29, § 13), it is not clear whether this method of
appearance was even an option prior to the expiration of the 90-
day period. Morcos thus fails to show the People could have
resorted to this provision to comply with section 1381. (See
People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 [declining
to address an argument that a party to a criminal appeal failed to
support adequately].)
Consequently, Morcos has not overcome the presumption of
correctness accorded to the trial court’s ruling that the People
could not bring him to trial prior to the expiration of
section 1381’s 90-day time limit. (See Sanghera, supra,
139 Cal.App.4th at p. 1574; Arter, supra, 19 Cal.App.5th Supp.
at p. 6.)
Next, we assess the legal import of that undisturbed
finding. Although we agree with Morcos that section 1381
does not explicitly authorize the trial court to deny a motion to
dismiss on the ground the People showed good cause for the delay
in bringing him to trial,10 the omission of a good cause exception
from the statute is not fatal to the court’s ruling.
The Attorney General correctly points out that “[w]here the
purpose of a statute is to prevent avoidable delay, a court can
adopt ‘ “a statutory construction recognizing an implicit . . .
exception” ’ in particular circumstances.” (Quoting National
Shooting Sports Foundation, Inc. v. State of California (2018)
5 Cal.5th 428, 433 (National Shooting Sports Foundation, Inc.).)
“For example, our courts have excused compliance with a statute
of limitations where timely compliance was impossible; in such

10 (See § 1381 [providing the trial court “shall . . . dismiss
the charge” “[i]n the event the action is not brought to trial
within the 90 days”].)

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instances, the excusal was based on an interpretation of the
statute of limitations in accordance with an underlying
legislative intent to avoid unjust application of the statute.”11
(National Shooting Sports Foundation, Inc., at p. 433.) These
precedents “recognize[ ] that a statute may contain an implied
exception for noncompliance based on impossibility where such
an exception reflects a proper understanding of the legislative
intent behind the statute.” (See id. at p. 434.) “Impossibility” is
“an aid to statutory interpretation” that “is akin to the absurdity
canon, which counsels courts to ‘avoid any [statutory]
construction that would produce absurd consequences.’
[Citations.]” (See ibid.)
Although the National Shooting Sports Foundation, Inc.
court made these observations in the course of construing Civil
Code section 3531 (see National Shooting Sports Foundation,
Inc., supra, 5 Cal.5th at pp. 433–434, citing Civ. Code, § 3531
[“The law never requires impossibilities.”]), California appellate

11 Although section 1381’s 90-day deadline is analogous to
a statute of limitations, we acknowledge that section 1381 differs
from a statute of limitations because (as discussed subsequently
in this part), section 1381 is intended to implement a
constitutional provision, whereas “[a] statute of limitations serves
to promote the public policy of furthering justice by precluding the
assertion of stale claims.” (Hennessey’s Tavern, Inc. v. American
Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359, italics added.)
Notwithstanding this distinction, we conclude, for the reasons
provided in greater detail later in this opinion, that the
impossibility doctrine applies because section 1381 was not
intended to impose strict liability on the People for failure to
adhere to the 90-day deadline. Instead, it was enacted to prohibit
delay attributable to the willful or negligent misconduct of state
officials.

13
courts have applied the impossibility doctrine in the criminal
context as well.
For instance, the Edwards court tacitly relied on the
principles underlying the impossibility doctrine when it rejected
a confrontation clause challenge to a trial court’s order requiring
all persons in the courtroom, including witnesses, to wear masks
in the course of a criminal trial held during the pandemic. (See
Edwards, supra, 76 Cal.App.5th at pp. 525–527.) Although the
Edwards court acknowledged that “[a] mask covering the nose
and mouth undeniably impairs jurors’ ability to see a witness’s
face to a degree,” the appellate court concluded that this
infringement of the defendant’s right to confrontation was
permissible because “it is undeniable that judges must not allow
a jury trial to spread a deadly contagion” and “[t]he Constitution
does not require judges to imperil public health.” (See ibid.) In
arriving at this conclusion, the Edwards court was, in effect,
adopting a construction of the confrontation clause that
“ ‘avoid[ed] . . . absurd consequences.’ [Citations.]” (See National
Shooting Sports Foundation, Inc., supra, 5 Cal.5th at p. 433.)
The impossibility doctrine excuses the People’s failure to
bring Morcos to trial before section 1381’s 90-day deadline
elapsed. Section 1381 is one of several statutory provisions that
constitute our Legislature’s “interpretation of the [state]
constitutional provision for speedy trial . . . .” (See Barker v.
Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806,
811–812 (Barker).) “The function of th[at underlying]
constitutional provision is ‘to protect those accused of crime
against possible delay, caused either by willful oppression, or the
neglect of the state or its officers.’ [Citations.]” (See id. at p. 811,
italics added.) Thus, it is apparent that in enacting section 1381,

14
the Legislature did not intend to penalize the People in cases
where compliance with the 90-day limitation would be
impossible. Furthermore, although the constitutional speedy
trial right’s “purpose and policy” is to “avoid[ ] the obvious
prejudice which follows when required to defend against criminal
charges long after commission of the alleged offenses” (see
Barker, at p. 813), Morcos does not claim that the delay in the
instant case resulted in any prejudice to him that may warrant
enforcement of section 1381’s deadline.12
Accordingly, we conclude that section 1381 “contain[s] an
implied exception for noncompliance based on impossibility” that
excuses the People’s inability to bring Morcos to trial within the
90-day time limit, given that this construction and application of
the provision “reflects a proper understanding of the legislative
intent behind the statute.” (See National Shooting Sports
Foundation, Inc., supra, 5 Cal.5th at p. 434.) We note that this
conclusion is not inconsistent with our acknowledgment that,
unlike section 1382, subdivision (a)(2), section 1381 does not, by
its terms, include a good cause exception.13 The “good cause”

12 During the proceedings below, Morcos suggested the
delay in bringing him to trial prevented him from settling his
case with the People at an earlier date so that he could have
served his prison sentence for the instant matter concurrently
with the sentence he was serving when he submitted his
section 1381 request on July 13, 2020. Morcos does not reassert
this argument on appeal. In any event, this argument is not
persuasive because Morcos did not explain how the delay in
bringing him to trial precluded him from engaging in plea
negotiations with the People.
13 (See § 1382, subd. (a)(2) [“The court, unless good cause
to the contrary is shown, shall order the action to be dismissed in

15
determination under section 1382 is committed to the trial court’s
“ ‘broad discretion’ ” and calls for a flexible, “ ‘ “ ‘totality of the
circumstances’ ” ’ ” analysis that allows the court to consider,
inter alia, “ ‘ “the nature and strength of the justification for the
delay . . . .” ’ ” (See Hernandez-Valenzuela v. Superior Court
(2022) 75 Cal.App.5th 1108, 1122–1124.) Conversely, as
explained above, we construe section 1381 to include an implied
exception for cases that satisfy a far more onerous standard, i.e.,
where compliance with the statutory time limit is impossible, and
we conclude that Morcos has failed to rebut the trial court’s
finding triggering that exception.14

the following cases: [¶] . . . [¶] In a felony case, when a defendant
is not brought to trial within 60 days of the defendant’s
arraignment on an indictment or information”]; see also Barker,
supra, 64 Cal.2d at pp. 811–812 [indicating that section 1382 is a
“specific provision[ ] declaratory of the constitutional right to a
speedy trial”].)
14 We acknowledge that Lacayo v. Superior Court (2020)
56 Cal.App.5th 396, found that a trial court had erred in
continuing a preliminary hearing beyond the applicable statutory
deadline (i.e., within 60 days of the arraignment) on account of
the COVID-19 pandemic. (See id. at pp. 397–398, 400.) The
Court of Appeal reasoned that “the 60-day rule is absolute and
there is no good-cause exception to the rule . . . .” (See id. at
pp. 399–400.) The Lacayo opinion does not undermine our ruling
in the instant case, however, because the People conceded error
in Lacayo (see id. at p. 397), meaning the appellate court had no
occasion to consider the potential applicability of the
impossibility doctrine. (See Kim v. Reins International
California, Inc. (2020) 9 Cal.5th 73, 85, fn. 4 [“ ‘[C]ases are not
authority for propositions that are not considered.’ ”].)

16
 People v. Tucker (2011) 196 Cal.App.4th 1313, provides
further support for our conclusion that the impossibility doctrine
applies to this case. There, the Court of Appeal upheld a trial
court’s decision to continue a trial because the “incarcerated
criminal defendant [was] under quarantine to prevent the spread
of infectious disease” that had led to the hospitalization of nearly
250,000 Americans and killed more than 11,000 of them, to wit,
“the H1N1 flu virus.” (See id. at pp. 1314–1316.) Although
Tucker concerned a trial court’s exercise of its discretion to find
good cause for a continuance under section 1382,
subdivision (a)(2) (see Tucker, at pp. 1316–1318), the decision is
instructive here because it recognizes that “[p]ublic health
concerns trump the right to a speedy trial,” and that “[a] contrary
holding would require trial court personnel, jurors, and witnesses
to be exposed to debilitating and perhaps life-threatening illness.”
(See id. at p. 1314.) Likewise, because the spread of a dangerous
and contagious disease prevented the People from bringing
Morcos to trial within section 1381’s 90-day timeframe, public
health concerns must trump Morcos’s interest in strict adherence
to the statutory deadline.
In sum, we conclude that under the limited circumstances
of this case, section 1381 impliedly authorized the trial court to
deny Morcos’s motion to dismiss on the ground that the People
were unable to bring him to trial within 90 days of his
July 13, 2020 written request.15

15 We affirm the order denying Morcos’s motion to dismiss
even though the trial court did not explicitly mention the
impossibility doctrine in its ruling. (See People v. Stuckey (2009)
175 Cal.App.4th 898, 913 [“ ‘If the decision of a lower court is
correct on any theory of law applicable to the case, the judgment

17
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

or order will be affirmed regardless of the correctness of the
grounds upon which the lower court reached its conclusion.’ ”].)

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