Smith v. Superior Court

Filed 7/2/12

IN THE SUPREME COURT OF CALIFORNIA

DONALD SMITH, )
)
Petitioner, )
) S188068
v. )
) Ct.App. 1/5 A124763
THE SUPERIOR COURT OF THE CITY )
AND COUNTY OF SAN FRANCISCO, )
) San Francisco City and
Respondent; ) County Super. Ct. No. 207788
)
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)

Under Penal Code section 1382, a defendant charged with a felony is
entitled to be brought to trial within 60 days of arraignment unless (1) the
defendant has expressly or impliedly consented to having trial set for a date
beyond that period, or (2) there is “good cause” for the delay. (Pen. Code, § 1382,
subd. (a)(2).)1 When a defendant‟s trial has been properly continued to a date
beyond the 60-day period, section 1382 further provides that the defendant is
entitled to be brought to trial on the new trial date “or within 10 days thereafter.”
(§ 1382, subd. (a)(2)(B).) In the present case, we consider application of these

1 All further statutory references are to the Penal Code.

1
rules when the prosecution seeks to try jointly charged defendants in a single joint
trial.
The Court of Appeal acknowledged that when the trial date of one jointly
charged defendant is continued beyond the 60-day period for good cause, the trial
date of a second jointly charged defendant may also be continued to maintain
joinder. It concluded, however, that a further continuance of the first defendant‟s
trial to a date within section 1382‟s 10-day period is not a basis for continuing the
second defendant‟s trial to maintain joinder. The Court of Appeal held that the
second jointly charged defendant has the right to insist that his or her trial
commence immediately, requiring either a severance of the charges into two trials
or the immediate commencement of a joint trial notwithstanding the 10-day period
authorized by section 1382.
As we explain, prior California decisions establish that the substantial state
interests in trying jointly charged defendants in a single trial constitute good cause
under section 1382 to continue the second jointly charged defendant‟s trial for a
reasonable period of time in order to retain joinder. In addition, the legislative
history of section 1382 reflects that the Legislature has determined the 10-day
period authorized by section 1382 represents, as a matter of law, a reasonable
period of time to bring a case to trial after it has been continued beyond the 60-day
period. Therefore, when the circumstances of one defendant cause a trial to be
continued beyond the 60-day period, there is good cause to continue a
codefendant‟s trial to a date within section 1382‟s 10-day grace period to permit
the defendants to be tried jointly.
Because the Court of Appeal reached a contrary conclusion, we reverse the
judgment.

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 I. FACTS AND PROCEDURAL HISTORY

A. Facts
On February 10, 2009, the District Attorney of the City and County of San
Francisco filed an information jointly charging Donald Smith (Smith) and
Christopher Sims (Sims) with one felony count of first degree residential
burglary.2 (§ 459.) They were arraigned the next day. Smith did not waive his
statutory right to be brought to trial within 60 days of his arraignment. (See
§ 1382, subd. (a)(2).) Therefore, the last day for the case to be brought to trial
within the 60-day period set forth in section 1382 was Monday, April 13.
Sims‟s counsel was ill on April 13. Over Smith‟s objection, the trial court
ruled that counsel‟s illness constituted good cause to continue the trial of both
defendants past the 60th day, and ordered the case to trail day to day. Sims‟s
counsel remained ill on April 14, and the trial court found good cause to continue
the case to April 16, on which date the court continued it again to April 17. Smith
objected to both of these continuances. On Friday, April 17, Sims‟s counsel
appeared and reported to the court that he would be recovered adequately to try a
case “in a relatively short period of time.” In response, the court continued the
case to Wednesday, April 22, again over Smith‟s objection.
It is unclear what occurred on April 22, but on April 23, the trial court
confirmed that Sims‟s counsel would be recovered and ready to proceed to trial on
Monday, April 27. The court stated that that circumstance “means the last day for
trial, according to case law, would be 10 days after Monday April 27th. [¶] So by
my calculations, May 7th would be the last day.” Smith‟s counsel responded,
“that would be over our objection.”

2 All dates are in 2009.

3
 On April 27, in the absence of Smith‟s counsel, the trial court continued the
matter to April 28. The prosecutor then asked Sims‟s counsel, “can we put that
matter over until the 28th? It‟s a no-time waiver.” The court stated, “It‟s not past
the last day,” and Sims‟s counsel added, “There was a ruling. The last day is
May 7th.” The prosecutor responded, “As long as that‟s clear. [Smith‟s counsel]
has been objecting all this time on [Smith‟s] matter.” The court stated, “I have it
listed as May 7th as the last day.” Shortly thereafter, Smith‟s counsel appeared
and objected to the continuance.
When the case was called on April 28, the prosecutor noted that Smith‟s
counsel “has been here every day to object.” The court stated, “Let‟s roll it over
until tomorrow.” Smith unsuccessfully moved to dismiss the charges.
On May 1, Smith sought a writ of mandate in the Court of Appeal to stay
further trial court proceedings against him. The Court of Appeal issued an order
to show cause and subsequently directed the superior court to enter an order
dismissing the information pending against Smith. We granted the People‟s
petition for review, and held the case pending our consideration and resolution of a
related speedy-trial issue in the case of People v. Sutton (2010) 48 Cal.4th 533
(Sutton). Thereafter, we transferred the case to the Court of Appeal with
directions to reconsider the cause in light of Sutton.

B. Sutton
In Sutton, supra, 48 Cal.4th 533, we addressed the right to a speedy trial
under section 1382.3 In Sutton, appointed counsel for one of two codefendants

3 As relevant here, section 1382 provides: “(a) The court, unless good cause
to the contrary is shown, shall order the action to be dismissed in the following
cases: [¶] . . . [¶] (2) 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 . . . . However, an action shall not be dismissed under this paragraph
(footnote continued on next page)

4
was unexpectedly engaged in another trial on the 60th day after the defendants‟
arraignment, but anticipated that the other trial would be completed very shortly.
Based on these circumstances, the trial court found good cause to continue the trial
of both defendants on a day-to-day basis, over the defendants‟ repeated objections,
to the 66th day after arraignment, at which time counsel who had been engaged in
another trial informed the court that his conflicting trial was completed. (Id. at
pp. 542-544.) We granted review in Sutton to address whether counsel‟s
engagement in another trial constituted good cause for the continuance.
We observed in Sutton that “a number of factors are relevant to a
determination of good cause” under section 1382 to continue a trial beyond the 60-
day period: “(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. [Citations.] Past decisions
further establish that in 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 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

(footnote continued from previous page)

if either of the following circumstances exists: [¶] (A) The defendant enters a
general waiver of the 60-day trial requirement. . . . [¶] (B) The defendant requests
or consents to the setting of a trial date beyond the 60-day period. . . . Whenever a
case is set for trial beyond the 60-day period by request or consent, expressed or
implied, of the defendant without a general waiver, the defendant shall be brought
to trial on the date set for trial or within 10 days thereafter.” (§ 1382, subd. (a),
italics added.)

5
applies an „abuse of discretion‟ standard.” (Sutton, supra, 48 Cal.4th at p. 546,
fn. omitted.)
With respect to the defendant whose counsel had been engaged in another
trial, we distinguished a continuance resulting from unforeseen consequences from
a continuance resulting from the state‟s failure to provide enough public
defenders, and concluded that the trial conflict in Sutton “was the type of
contingency that may occur even in a reasonably funded and efficiently
administered trial court system that handles a large volume of criminal cases.”
(Sutton, supra, 48 Cal.4th at p. 554; see People v. Johnson (1980) 26 Cal.3d 557
[delay resulting from the failure of the state to provide enough public defenders is
not good cause for a continuance].)
With respect to the defendant whose counsel was ready to proceed to trial
within the 60-day period, we relied first on section 1050.1 in concluding that the
continuance was permissible as to that defendant. Section 1050.1 provides that,
when the trial of one jointly charged defendant is continued for good cause, “the
continuance shall, upon motion of the prosecuting attorney, constitute good cause
to continue the remaining defendants‟ cases so as to maintain joinder.” We
concluded that because the continuance of the first defendant‟s trial was supported
by good cause, the continuance of the second defendant‟s trial was also supported
by good cause under section 1050.1.4

4 The defendant in Sutton, whose counsel had been ready for trial, asserted
that section 1050.1 did not apply because the prosecutor had not moved to
continue the second defendant‟s trial. We disagreed, and held that section 1050.1
does not require an explicit motion by the prosecutor. “The statute does not
purport to preclude a trial court from finding that the state interest in a joint trial
constitutes good cause for a continuance in the absence of such a motion by the
prosecuting attorney, and the evident legislative intent underlying the statute — to
facilitate joint trials and to minimize the instances in which a severance is required
(footnote continued on next page)

6
 In Sutton, we also identified a second basis that supported the continuance
of the trial of the joined defendant. “[L]ong before the enactment of section
1050.1 in 1990, California decisions had recognized that a trial court properly may
find that the significant state interests that are furthered by conducting a single
trial of jointly charged criminal defendants constitute good cause to continue a
codefendant‟s trial beyond the presumptive statutory period designated in section
1382.” (Sutton, supra, 48 Cal.4th at p. 559.) Although the state interests in a joint
trial must be “especially compelling” if the continuance to allow a joint trial will
be lengthy, “when the proposed delay to permit a single joint trial is relatively
brief, the substantial state interests that are served in every instance by proceeding
in a single joint trial generally will support a finding of good cause to continue the
codefendant‟s trial under section 1382, even when there is no indication that, were
the defendants‟ trials to be severed, the separate trials would be unusually long or
complex.” (Id. at p. 560.) We disapproved Sanchez v. Superior Court (1982) 131
Cal.App.3d 884 (Sanchez), People v. Escarcega (1986) 186 Cal.App.3d 379
(Escarcega), and Arroyo v. Superior Court (2004) 119 Cal.App.4th 460 (Arroyo)
“to the extent they hold or suggest that the state interests served by a joint trial
cannot constitute good cause under section 1382 to continue a codefendant‟s trial
beyond the presumptive statutory deadline.” (Sutton, supra, at p. 562.) After
Sutton became final, we transferred the present case to the Court of Appeal for
reconsideration in light of Sutton.

(footnote continued from previous page)

— is consistent with a trial court‟s authority to make such a good cause
determination on its own.” (Sutton, supra, 48 Cal.4th at p. 559.)

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 C. The opinion of the Court of Appeal after Sutton
In its review of our opinion in Sutton, supra, 48 Cal.4th 533, the Court of
Appeal focused on our observation that “ „when, as here, two defendants are
jointly charged in an information and the trial court continues the trial as to one of
the defendants for good cause, section 1050.1 provides that the continuance of the
trial as to that defendant constitutes good cause to continue the trial “a reasonable
period of time” as to the other defendant in order to permit the defendants to be
tried jointly.‟ ” (Quoting Sutton, supra, 48 Cal.4th at p. 558, italics added by Ct.
of Appeal.) The Court of Appeal acknowledged this court‟s recognition that the
state interests in maintaining joinder can constitute good cause to delay a trial, and
that we disapproved language in Sanchez, supra, 131 Cal.App.3d 884, and Arroyo,
supra, 119 Cal.App.4th 460, to the contrary. It observed, however, that Sutton
addressed a continuance to maintain joinder where the codefendant‟s case has
been continued for good cause. The Court of Appeal distinguished that scenario
from the present case, in which Smith‟s trial was continued to maintain joinder
when Sims‟s case was further continued to a later date within section 1382’s 10-
day grace period, and observed that “[t]he People did not demonstrate good cause
to delay Smith‟s trial beyond April 27.”
In response to the People‟s reliance on the state‟s interests in joinder as a
basis for the continuance of defendant Smith‟s trial during the 10-day period, the
Court of Appeal stated that “in all of the cases in which joinder interests have been
found to outweigh speedy trial rights, some valid justification for delay has been
presented — for example, that the continuance was necessary to ensure the
codefendant‟s right to effective assistance of counsel. [Citations.]” It also
rejected the People‟s contention that Sutton overruled Sanchez and Arroyo, noting
that we disapproved only the statements that interests in joinder cannot constitute
good cause to continue a codefendant‟s trial. Finally, in response to the People‟s

8
observation that the continuance in this case was short and apparently did not
adversely affect Smith‟s ability to defend himself, the Court of Appeal observed
that these circumstances are relevant only after good cause for delay is identified.
Having distinguished Sutton, the Court of Appeal turned to the language of
section 1382. It noted that the 10-day grace period is allowed when “the
defendant” has requested or consented to the setting of a trial date beyond the 60-
day period. It concluded that “[a]dopting the People‟s interpretation would ignore
the Legislature‟s use of the word „defendant,‟ rather than „the defendant, or any
jointly charged defendant.‟ Had the Legislature intended that section 1382,
subdivision (a)(2)(B), also apply to an objecting codefendant, it could have said
so. It did not.” (Fn. omitted.) It also observed that when the Judicial Council
recommended adoption of the legislation that added the 10-day period in 1959, the
Judicial Council “did not address the codefendant situation.”
The Court of Appeal rejected the People‟s contention that section 1050.1
extends the 10-day grace period to codefendants in these circumstances. As noted
above, section 1050.1 provides that when the trial of one defendant is continued
for good cause, that continuance constitutes good cause to continue the other
defendants‟ cases for a reasonable period of time in order to maintain joinder. The
Court of Appeal stated that “[n]othing in the text of section 1050.1, or its history,
suggests that the electorate intended the 10-day grace period of section 1382
should thereby automatically apply to the trial of an objecting codefendant.” It
added that the speedy trial provisions of section 1382 and the interests in joinder
recognized in section 1050.1 can be harmonized without interpreting section
1050.1 to authorize a continuance whenever one defendant is subject to the 10-day
grace period. Here, according to the Court of Appeal, when Sims‟s counsel was
ready for trial on April 27, Smith‟s speedy trial rights could have been preserved
and severance would not have been required if both cases had gone to trial that

9
day. The Court of Appeal “acknowledge[d] that the People may be placed in the
difficult circumstance of being required to proceed on a date certain when delay is
caused entirely by a jointly charged codefendant, and not by action or inaction
attributable to the prosecution. If the Legislature wishes to address this situation,
it must say so.”5
The Court of Appeal ordered issuance of a peremptory writ of mandate
directing the trial court to dismiss the information pending against Smith. We
granted the People‟s petition for review.

II. IS A CONTINUANCE OF A CODEFENDANT’S TRIAL BEYOND SECTION 1382’S
60-DAY PERIOD TO PERMIT A JOINT TRIAL PERMISSIBLE ONLY IF THE TRIAL
DATE FOR THE OTHER DEFENDANT HAS BEEN CONTINUED FOR GOOD CAUSE, OR
MAY THE STATE INTERESTS IN JOINDER CONSTITUTE GOOD CAUSE TO JUSTIFY A
CONTINUANCE OF A CODEFENDANT’S TRIAL FOR A REASONABLE PERIOD OF
TIME?

The Court of Appeal‟s conclusion rests on the premise that a continuance of
a defendant‟s trial to maintain a joint trial is permissible only under the provisions
set forth in section 1050.1, and thus is permissible only if the other defendant‟s
trial date has been continued for good cause. As we explained in Sutton, however,
even before the enactment of section 1050.1, California cases recognized that the
state‟s interests in a single joint trial constitute good cause for delaying a jointly
charged defendant‟s trial, and thus the propriety of such a delay does not rest upon
section 1050.1 alone. Nothing in the language of section 1050.1 suggests that it
was intended to limit a trial court‟s authority under section 1382 to continue a
codefendant‟s trial in order to facilitate a joint trial to the circumstances set forth

5 As noted above, the People did not seek a continuance on April 27. Rather,
the trial court apparently was not in a position to send the case to trial on that date
and continued the trial to a later date within the 10-day period.

10
in section 1050.1. The history and purpose of section 1050.1 — which was
adopted as section 22 of Proposition 115, the Crime Victims Justice Reform Act, a
1990 initiative measure that made numerous constitutional and statutory changes
to the state‟s criminal justice system — belie any such suggestion. (See Raven v.
Deukmejian (1990) 52 Cal.3d 336, 343; Ballot Pamp., Primary Elec. (June 5,
1990) analysis of Prop. 115 by Legis. Analyst, p. 33; Ballot Pamp., supra,
argument in favor of Prop. 115, p. 34.) Further, as noted above, in Sutton, we
disapproved Sanchez, supra, 131 Cal.App.3d 884, Escarcega, supra, 186
Cal.App.3d 379, and Arroyo, supra, 119 Cal.App.4th 460, “to the extent they hold
or suggest that the state interests served by a joint trial cannot constitute good
cause under section 1382 to continue a codefendant‟s trial beyond the presumptive
statutory deadline.” (Sutton, supra, 48 Cal.4th at p. 562, italics added.)
Like the Court of Appeal, Smith maintains that it would be inconsistent
with the terms of section 1382 to allow his case to be continued along with Sims‟s
case to a date within the 10-day grace period. He observes that section 1382,
subdivision (a)(2)(B) refers to “the defendant” who requests or consents to the
setting of trial beyond the 60-day period and states that “the defendant” shall be
brought to trial within 10 days of the new trial date. He notes that this provision is
silent with respect to codefendants, and he asserts that applying the 10-day period
to him would rewrite the statute to state that “the defendant and any joined
codefendants” shall be brought to trial within 10 days. As we explain, our
construction of the statutory scheme does not interpret section 1382‟s reference to
“the defendant” to mean “the defendant and any joined codefendants.” Rather, we
conclude that when the trial court continues the trial of “the defendant” to a date
within section 1382‟s 10-day grace period, the state‟s strong interests in
conducting a single joint trial provide good cause, within the meaning of the first

11
sentence of section 1382, to also continue the trial of a codefendant‟s case to
maintain joinder. (§ 1382, subd. (a).)
As the Court of Appeal noted, it appears the common reason that one
codefendant‟s trial date is set beyond the ordinary statutory deadline is because
there is good cause to continue that defendant‟s case. Nothing in the language of
section 1382, however, restricts application of the statute‟s good cause exception
with respect to the second codefendant only to situations in which the first
codefendant‟s trial is continued for good cause. Once Sims‟s trial was continued
on April 27 pursuant to section 1382‟s 10-day grace period, the relevant issue
under section 1382 with respect to Smith was whether there was good cause to
continue Smith‟s trial. As we held in Sutton, when the delay will be relatively
short, the substantial state interests that are served by a joint trial provide good
cause to continue a codefendant‟s trial under section 1382. (Sutton, supra, 48
Cal.4th at p. 560.)
It is worth noting in this regard that the general rule that a codefendant‟s
trial may be continued for a reasonable period to maintain joinder, and that such a
continuance does not violate that codefendant‟s speedy trial rights, is by no means
unique to California. The federal Speedy Trial Act of 1974 provides that in
computing the time within which a case must be brought to trial, the court shall
exclude “[a] reasonable period of delay when the defendant is joined for trial with
a codefendant as to whom the time for trial has not run and no motion for
severance has been granted.” (18 U.S.C. § 3161(h)(6); see Henderson v. United
States (1986) 476 U.S. 321, 323, fn. 2 [“All defendants who are joined for trial
generally fall within the speedy trial computation of the latest codefendant”];
United States v. Messer (9th Cir. 1999) 197 F.3d 330, 336 [“It is well established
that an exclusion from the Speedy Trial clock for one defendant applies to all
codefendants”].)

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 The factual situation presented in Arroyo, supra, 119 Cal.App.4th 460 —
one of the cases discussed in Sutton, supra, 48 Cal.4th at pages 561-562 —
provides an illustration of one circumstance in which the continuance of a
defendant‟s trial to permit a joint trial may be permissible even when the other
defendant‟s trial date has not been continued for good cause. Defendant Arroyo
and two codefendants were indicted on October 7 in Orange County. All three
defendants were charged jointly in one indictment. Arroyo appeared in court for
arraignment in Orange County on October 21, but codefendant Amaya failed to
appear because she was in custody in San Bernardino County on another charge,
and the third codefendant never appeared. Thereafter, Arroyo‟s case was set for
trial in Orange County on December 15. Amaya‟s San Bernardino case was
concluded on December 2, and she appeared in Orange County for arraignment on
December 12, the same day as Arroyo‟s pretrial hearing, at which he opposed any
continuance of his trial. Amaya‟s case was set for trial in Orange County on
January 26. On December 15, the prosecutor requested that Arroyo‟s trial date be
continued in the interest of judicial economy to allow a joint trial with Amaya.
The trial court found good cause to continue Arroyo‟s trial until the date set for
Amaya‟s trial.
In these circumstances, Amaya‟s trial date was set beyond Arroyo‟s 60-day
speedy trial deadline, not for good cause, but rather because the delay in Amaya‟s
arraignment meant that the 60-day period within which her case was to be brought
to trial began running 52 days after Arroyo‟s 60-day period began. Because the
setting of Amaya‟s trial date after Arroyo‟s date was not based on good cause, by
its terms section 1050.1 did not authorize a continuance of Arroyo‟s trial beyond
the statutory deadline to maintain joinder. Under section 1382, however, the date
by which Arroyo was to be brought to trial could be continued beyond the 60-day
period for good cause (§ 1382, subd. (a)), and as we explained in Sutton, supra,

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48 Cal.4th 533, “when the proposed delay to permit a single joint trial is relatively
brief, the substantial state interests that are served in every instance by proceeding
in a single joint trial generally will support a finding of good cause to continue the
codefendant‟s trial under section 1382, even when there is no indication that, were
the defendants‟ trials to be severed, the separate trials would be unusually long or
complex.” (Id. at p. 560.)
In Arroyo, supra, 119 Cal.App.4th 460, the Court of Appeal concluded that
“the trial court relied on maintaining joinder alone as the sole reason for
continuance, without regard to any competing factors.” (Id. at p. 467.) We agree
that a trial court must consider all of the relevant circumstances, including the
codefendant‟s right to a speedy trial, but as we indicated in Sutton, supra,
48 Cal.4th 533, in every case substantial state interests are served by a joint trial.
Among those interests is the reduction in the expenditure of judicial resources,
including the expense of courtrooms, judges, and other court staff. In addition,
only one set of jurors must serve, and crime victims and witnesses will be
burdened by only a single trial. Finally, the public and all involved in the criminal
system are benefited by reduced delay in the resolution of criminal charges. (Id. at
p. 560, fn. 15.)
Although a trial court generally must consider all relevant circumstances in
deciding whether and for how long to continue a second defendant‟s trial, when
the first defendant‟s trial is continued to a date within section 1382‟s 10-day
period, the trial court need not evaluate on a case-by-case basis whether a parallel
delay of the second defendant‟s trial (within the 10-day period) is for a reasonable
period of time. As we explain below, the Legislature has determined, as a matter
of law, that 10 days is a reasonable period to allow both the trial court and the

14
prosecution the scheduling flexibility required to bring a case to trial after the 60-
day period has passed.6
Section 1382‟s 10-day grace period was added in 1959. (Stats. 1959,
ch. 1693, p. 4093.) Prior to the 1959 amendment, the statute was silent with
respect to a defendant‟s rights if the defendant consented to a delay in the trial date
beyond the first 60 days. “There was no provision for a 10-day „grace period,‟ and
the statute was unclear as to whether an accused who obtained a postponement of
his trial to a date past the 60-day limit thereby lost forever his statutory rights to a
speedy trial and a dismissal.” (Owens v. Superior Court (1980) 28 Cal.3d 238,
244 (Owens).) We had recognized, however, that the defendant‟s “consent to
delay beyond the 60-day period does not amount to a waiver of his constitutional
right to a speedy trial nor of the requirement that further delay must be justified on
grounds of reasonableness and good cause.” (In re Lopez (1952) 39 Cal.2d 118,
120 (Lopez).) Thus, prior to the 1959 amendments, “a defendant was entitled to
go to trial, in cases where he had consented to a continuance beyond the
prescribed period, on the date to which he last consented unless good cause for
further delay was shown.” (Malengo v. Municipal Court (1961) 56 Cal.2d 813,
815.)
In its Seventeenth Biennial Report to the Governor and the Legislature, the
Judicial Council expressed the view that “Section 1382 is in need of clarification.”

6 In this case the continuance was granted within the 10-day period in view
of the trial court‟s need for flexibility, but we have also recognized that the
statutory 10-day period furthers the People‟s need for time to prepare for trial. “In
addition to enabling courts to ensure the availability of judicial resources, the 10-
day grace period afforded by section 1382(a)(3)(B) . . . also „protects the People
by giving them 10 days if necessary.‟ [Citations.]” (Barsamyan v. Appellate
Division of Superior Court (2008) 44 Cal.4th 960, 978 (Barsamyan).)

15
(Jud. Council of Cal., Seventeenth Biennial Rep. (1959) p. 31.) One of the
ambiguities noted in the report was the statute‟s silence with respect to the
recourse available to a defendant once he or she consented to a postponement
beyond the 60-day period. The Judicial Council‟s report also observed that courts
had held that “the defendant must be brought to trial within a reasonable time
thereafter and that further delay must be justified by showing good cause . . . .”
(Ibid.) Among the cases cited in connection with this observation were Lopez,
supra, 39 Cal.2d at page 120, which concluded that a 21-day delay was not
unreasonable when the court was engaged in other trials; People v. Smith (1957)
153 Cal.App.2d 84, 87, which concluded that a two-week delay “was clearly not
unreasonable, and good cause is shown by the congestion of the court‟s calendar”;
and Stewart v. Superior Court (1955) 132 Cal.App.2d 536, 539, which did not
decide whether there was good cause for the delay due to court congestion, but
concluded that a 40-day delay was not unreasonable. (Jud. Council of Cal.,
Seventeenth Biennial Rep., supra, p. 32, fn. 42.)
To clarify section 1382, the Council “recommended that the section be
amended to provide for dismissal of all cases not brought to trial within the
statutory period (unless good cause is shown) except when the defendant has
consented to the trial being set beyond the statutory period, and that in the latter
situation the case must be dismissed if it is not brought to trial within 10 days after
the last date for trial to which the defendant consented. This will clarify the
present rule by (a) establishing that dismissal under Section 1382 may be had even
though the defendant has previously consented to a delay beyond the statutory
period, [and] (b) fixing 10 days as a reasonable time for trial after expiration of

16
the period consented to by the defendant . . . .”7 (Jud. Council of Cal.,
Seventeenth Biennial Rep., supra, at p. 32, italics added.) “[B]ecause the Judicial
Council‟s proposed amendment to section 1382 was adopted verbatim in the 1959
legislative enactment, we can conclude that the Judicial Council‟s explanation of
the measure reflected legislative intent.” (Barsamyan, supra, 44 Cal.4th at
p. 976.) Thus, the Legislature has determined that 10 days will never be an
unreasonable period of time to allow the court and prosecution to bring the case to
trial.
It is also unnecessary for the prosecutor to make a particularized showing
or for the trial court to make a case-specific determination that there is good cause
for a continuance within the 10-day grace period in order to justify a trial
continuance for both defendants within the 10-day period. With respect to the
defendant who causes the case to exceed the 60-day period, the legislative history
and our case law make clear that the trial court and the prosecution are entitled to a
10-day grace period without any particularized showing of good cause. (See
Barsamyan, supra, 44 Cal.4th at pp. 970-971; Malengo v. Municipal Court, supra,
56 Cal.2d at pp. 815-816.) With respect to the joined defendant, we explained in
Sutton, supra, 48 Cal.4th 533, that “when the proposed delay to permit a single
joint trial is relatively brief, the substantial state interests that are served in every
instance by proceeding in a single joint trial generally will support a finding of
good cause to continue the codefendant‟s trial under section 1382, even when

7 This recommendation was made pursuant to the Judicial Council‟s
constitutional mandate to report to the Governor and the Legislature “ „with such
recommendations as it may deem proper,‟ ” and to “ „submit to the Legislature . . .
its recommendations with reference to amendments of, or changes in, existing
laws relating to practice and procedure.‟ ” (Owens, supra, 28 Cal.3d at p. 245; see
Cal. Const., art. VI, former § 1a [repealed Nov. 8, 1966; now art. VI, § 6].)

17
there is no indication that, were the defendants‟ trials to be severed, the separate
trials would be unusually long or complex.” (Id. at p. 560.) This recognition,
together with the Legislature‟s determination that 10 days will never be an
unreasonable period of delay to allow the prosecution and the trial court to prepare
for trial, establishes that there is always good cause to continue a codefendant‟s
trial within section 1382‟s 10-day grace period to maintain joinder. Therefore, no
particularized or case-specific showing or finding of good cause is required.
Smith states that we rejected “automatic joinder” in Sutton, supra, 48
Cal.4th 533, and that good cause must be found on a case-by-case basis. The
passage in Sutton he cites in support of this contention, however, concerned trial
delays caused by conflicting obligations of a public defender or appointed counsel
to multiple clients. (See Sutton, supra, 48 Cal.4th at p. 557, fn. 13.) In that
context, we rejected the Attorney General‟s suggestion that such counsel should be
allowed to waive a client‟s statutory speedy trial rights, over the client‟s objection,
to fulfill counsel‟s obligations to another client. We concluded instead that a trial
court should consider on a case-by-case basis whether counsel‟s conflicting
obligations are the result of the state‟s chronic failure to provide a sufficient
number of defense counsel or, as in Sutton, are the result of a contingency that
may occur even in reasonably funded courts. In contrast, the continuance at issue
in this case fell within the 10-day period provided by the Legislature to allow the
trial court to adjust its trial calendar.
Smith also asserts there was no need to continue the trial to maintain
joinder. “If a joint trial had started immediately after good cause [as to Sims]
dissipated, joinder would have been maintained.” Although it appears that both
defendants as well as the prosecutor were prepared to proceed to trial on April 27,
the trial court was not. The trial court‟s need for reasonable flexibility is
accommodated by section 1382‟s grace period, and defendants‟ right to a speedy

18
trial is protected by the 10-day limit upon that grace period. This interpretation
harmonizes the relevant provisions and protects all of the relevant interests. (See
Sutton, supra, 48 Cal.4th at p. 559 [significant state interests are served by
conducting joint trials]; Barsamyan, supra, 44 Cal.4th at p. 978 [10-day grace
period protects the defendant‟s right to a speedy trial, enables the court to ensure
judicial resources are available, and protects the People by allowing them time to
prepare].)
Amicus curiae, the Public Defender of the County of Los Angeles, raises
the specter that one defendant will be able unilaterally to waive the speedy trial
rights of codefendants. He notes that if Sims had consented to a delay within
section 1382‟s 10-day period, a new 10-day period would have been initiated.
(Barsamyan, supra, 44 Cal.4th at p. 979.) Similarly, if a defendant consents to a
continuance beyond the initial 60-day period, that defendant‟s trial date is properly
continued beyond the speedy trial deadline under the statutory scheme, but the
continuance may not be for good cause. In the event one jointly charged
defendant waives the time limits of section 1382, the trial court must consider all
of the circumstances, including the situation of each defendant and the
prosecutor‟s position, to determine whether to allow a continuance and for how
long. When a trial court concludes that it is appropriate to allow one defendant a
reasonable period of delay and that a codefendant‟s trial should be continued to
maintain joinder, the trial court‟s ruling is not tantamount to allowing one
defendant unilaterally to waive the speedy trial rights of another. Rather, it is the
trial court that is granted discretion under section 1382 to determine when there is
good cause to delay trial to maintain joinder, and its order represents a balancing

19
of all interests, not merely the preference of the defendant who requests or
consents to delay.8

IV. CONCLUSION
Under section 1382, when one codefendant‟s trial is continued to a date
within section 1382‟s 10-day grace period, the state‟s strong interests in joinder
provide good cause to continue the trial for all properly joined codefendants to the
same date within the 10-day period. Therefore, the trial court did not abuse its
discretion in continuing Smith‟s trial to a date within the 10-day period in order to
permit Smith and Sims to be tried in a single joint trial. The judgment of the Court
of Appeal is reversed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

8 We note that our holding in this case — that the state‟s interests in a joint
trial may constitute good cause to continue a codefendant‟s trial so as to retain
joinder whether or not the continuance of the other codefendant‟s trial was based
on good cause — does not render section 1050.1 meaningless. Under section
1050.1, when one codefendant‟s case is continued for good cause, a trial court is
required to find that there is “good cause to continue the remaining defendants‟
cases so as to maintain joinder” and may not sever the cases “unless it appears to
the court . . . that it will be impossible for all defendants to be available and
prepared within a reasonable period of time.” When the terms of section 1050.1
do not apply, a trial court retains its usual discretion to determine, under all the
circumstances, whether there is good cause to continue a codefendant‟s trial to
maintain joinder.

20
 CONCURRING OPINION BY WERDEGAR, J.

I agree with the majority that the trial court properly continued defendant
Smith‟s trial to a date within the 10-day grace period afforded by Penal Code
section 13821 in order to preserve joinder. My reasons differ.
The plain language of the relevant statutes, as I read them, supports the trial
court‟s ruling. Any continuance granted under section 1382 with the express or
implied consent of one jointly charged codefendant necessarily includes a 10-day
grace period. (See § 1382, subd. (a)(2)(B).) Furthermore, under section 1050.1,
the continuance granted to the consenting codefendant applies to the
nonconsenting codefendant. As the statute provides, “[i]n any case in which two
or more defendants are jointly charged . . . , and the court . . . for good cause
shown, continues the . . . trial of one or more defendants, the continuance shall . . .
constitute good cause to continue the remaining defendants‟ cases so as to
maintain joinder.” (§ 1050.1, italics added.) In other words, the entire
“continuance” to which section 1050.1 refers is defined by section 1382 as
including a 10-day grace period. The Court of Appeal, which read the statute
differently, asserted that nothing in the legislative history of section 1050.1
“ „suggest[s] that the electorate intended the 10-day grace period . . . should . . .
automatically apply to the trial of an objecting codefendant.‟ ” (As quoted in maj.

1 All statutory citations are to the Penal Code.

1
opn., ante, at p. 9.) But neither does anything in the legislative history suggest the
electorate intended the 10-day grace period not to apply. In any event, we have
never held that a statute‟s plain meaning requires confirmation in extrinsic
sources. Indeed, the rule is to the contrary. (E.g., Ste. Marie v. Riverside County
Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 288 [“ „If the language
of the statute is not ambiguous, the plain meaning controls and resort to extrinsic
sources to determine the [enacting body‟s] intent is unnecessary.‟ ”].)
Because section 1050.1 did authorize the trial court to continue defendant
Smith‟s trial to maintain joinder, I would not reach the question whether the court
had power to make the same ruling under section 1382, without regard to section
1050.1. I do not read People v. Sutton (2010) 48 Cal.4th 533, which relied both on
section 1382 and on section 1050.1 (see Sutton, at pp. 558, 562), as resolving that
issue.
WERDEGAR, J.

2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Smith v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 189 Cal.App.4th 769
Rehearing Granted

__________________________________________________________________________________

Opinion No. S188068
Date Filed: July 2, 2012
__________________________________________________________________________________

Court: Superior
County: San Francisco
Judge: Ksenia Tsenin

__________________________________________________________________________________

Counsel:

Jeff Adachi, Public Defender, Christopher F. Gauger, Managing Attorney, Teresa Caffese, Chief Attorney,
Doug Welch and Charmaine Yu, Deputy Public Defenders, for Petitioner.

Ronald L. Brown, Public Defender (Los Angeles) and John Hamilton Scott, Deputy Public Defender, for
Public Defender of Los Angeles County as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Stan Helfman and
Masha Dabiza, Deputy Attorneys General, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher F. Gauger
Managing Attorney
555 Seventh Street
San Francisco, CA 94103
(145) 553-9734

Masha Dabiza
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5854