Brandon Daws v. The Superior Court of Contra Costa County, The People, Real Party in Interest

In November 2018, the prosecution filed a misdemeanor complaint charging Daws

with violating Health and Safety Code sections 11359, 11360, subdivision (a), and

11377; and Vehicle Code section 14601.5, subdivision (a). At the arraignment hearing,

Daws waived his statutory right to be brought to trial within 45 days. (See § 1382,

subd. (a)(3).)

On the morning of February 22, 2019, during an off-the-record conversation in the

judge’s chambers, Daws’s counsel provided oral notice to the court and the prosecutor

that his client intended to withdraw his time waiver and invoke his right to a speedy trial

on the record when the case was called. During the court hearing that followed shortly

afterward, counsel announced Daws was pulling his time waiver and requested a trial

date within 30 days. The trial court rejected this request, explaining that Daws must

provide two days’ written notice to the prosecution before withdrawing his time waiver.

The court scheduled trial for 80 days later, but invited Daws’s counsel to provide

two days’ written notice to the prosecution if his client wished to insist upon withdrawing

his time waiver and having an earlier trial date. Daws declined to do so, made no further

attempt to withdraw his time waiver, waited for 30 days to elapse, and then filed a motion

to dismiss, arguing that the prosecution failed to bring him to trial within 30 days after his

attempt to withdraw his time waiver on February 22. The trial court denied the motion.

Daws then petitioned for writ relief in the appellate division of the superior court.

In a split decision, the appellate division affirmed the order denying Daws’s motion to

dismiss. The two-judge majority explained that the “proper notice” required by section

1382 “must mean notice sufficient to allow all parties to determine witness availability so

that ‘after,’ when the trial date is set ‘in open court,’ the court and counsel can select a

proper trial date – a critical matter when trial is to be set within a short 30-day time

frame.”

The majority took the view that the oral notice provided by Daws was inadequate:

“Same-day oral notice right before a district attorney is to appear for the People at a

pretrial hearing is notice in form, not substance. It is not calculated or practically

effective to allow any meaningful contact with witnesses. A district attorney due in court

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for multiple cases cannot act on such notice in that moment by contacting witnesses and

determining their availability before the hearing. Such ‘notice’ thus defeats, not serves,

the goal of determining witness availability and responsible trial setting. It is, essentially,

for purposes of responsible trial setting, useless notice. We decline to ascribe to the

legislature the intent to make ‘proper’ synonymous with ‘useless.’ ”

Disagreeing that the requirement of “proper notice” in section 1382 is tied to

ascertaining witness availability, the dissenting judge read the proper-notice requirement

“simply as the notice required to ensure that the People have actual knowledge that the

time waiver is being withdrawn, so that they can ensure that a trial is set within the

deadline.” The dissent concluded: “As the record is minimally developed on the

sufficiency of the notice on this definition of ‘proper,’ [I] would grant the writ and send

the case back to the trial court for a new hearing on the motion to dismiss, so the court

could decide whether the notice given was ‘proper’ based on the actual circumstances of

the case, and not on a two-day rule found nowhere in the statute, in any local rule, or in

any other available or authoritative source.”

At that point, Daws unsuccessfully filed a petition for a writ of mandate or

prohibition in this court. After we denied relief, the Supreme Court granted a petition for

review and transferred the matter to us with directions to vacate our order denying

Daws’s writ petition, and to issue an order to show cause why relief should not be

granted. We issued an order to show cause, and the matter is now before us for decision.

Once again, we shall deny writ relief, this time with an explanation.

DISCUSSION

“Under article I, section 15 of the California Constitution and the Sixth

Amendment of the United States Constitution, a criminal defendant has the right to a

speedy public trial. This right protects the defendant “ ‘ “from having criminal charges

pending against him an undue length of time.” ’ ” (People v. Lewis (2001) 25 Cal.4th

610, 628-629.) To implement this constitutional right, the Legislature enacted

section 1382. (Id. at p. 629.) Under section 1382, a defendant charged with a

misdemeanor must face trial within 30 days after his arraignment or plea if he is in

custody, or within 45 days if he is not in custody. (§ 1382, subd. (a)(3).)

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Section 1382 also allows a defendant to waive his right to be brought to trial

within the 30- or 45-day time limit. (§ 1382, subd. (a)(3)(A).) If a defendant has waived

this right, section 1382 permits him to withdraw the waiver at a later time: “If the

defendant, after proper notice to all parties, later withdraws, in open court, his or her

waiver in the superior court, the defendant shall be brought to trial within 30 days of the

date of that withdrawal.”

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(Ibid.) “Upon the withdrawal of a general time waiver in open

court, a trial date shall be set and all parties shall be properly notified of that date.”

(Ibid.)

Arguing that he suffered a violation of his right to a speedy trial, Daws contends

that his “verbal notice to the prosecution at the pretrial conference held in chambers prior

to the commencement of in-court proceedings provided actual notice of [his] intention to

invoke his speedy trial right and request that trial commence within 30 days. . . . This

verbal notice fulfilled the requirements of both the language and intention of

section 1382.” The Contra Costa County District Attorney responds that the two-day

notice requirement adopted by the court was appropriate, “given the process and

procedures used in every other situation in which a criminal defendant is required to give

notice before asserting any right in open court.” If the district attorney is correct, there

was no speedy trial violation because Daws failed to withdraw his time waiver in the

manner prescribed by section 1382.

We think the district attorney has the better of the argument.

As with so many statutory interpretation issues that turn on broad, open-ended

terms, we begin with a recognition that the Legislature deliberately left section 1382’s

notice requirement undefined. In this situation—absent a procedure specified by statute

or rule of court—a trial court possesses inherent authority to adopt any suitable procedure

that appears “most conformable to the spirit” of the statute under which it is operating.

(Code Civ. Proc., § 187; People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 531-

2 Section 1382 contains a similar requirement for defendants seeking to withdraw

a time waiver in felony cases, except that a defendant charged with a felony must be

brought to trial within 60 days of the date of the withdrawal. (§ 1382, subd. (a)(2)(A).)

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532 [applying Code of Civil Procedure section 187 in criminal case]; see also People v.

Smith (2016) 245 Cal.App.4th 869, 878, fn. 4 [discussing trial courts’ inherent authority

to adopt local rules and courtroom rules].) In our view, the trial court’s reading of section

1382 conforms to the spirit of section 1382.

We review the court’s exercise of its inherent authority for abuse of discretion,

bearing in mind that “ ‘the determination of whether the trial court selected the proper

legal standard[] in making [a discretionary] determination is reviewed de novo.’ ”

(Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533.) Exercising our independent

judgment on the predicate question of statutory construction presented here, four

considerations lead us to conclude that the trial court’s interpretation of section 1382,

subdivision (a)(3)(A) was correct, and that, as a result, the trial judge did not abuse her

discretion in adopting what, in effect, amounts to a courtroom rule of practice under

section 1382.

First, strictly as a matter of textual analysis, the trial court’s reading of

section 1382 conforms with the rule against surplusage in statutory construction (People

v. Valencia (2017) 3 Cal.5th 347, 357), while Daws’s proposed reading does not. By

requiring that notice be given with a minimal level of formality, the trial court’s

construction gives independent meaning to the word “proper.” (See Merriam-Webster’s

Collegiate Dict. (11th ed. 2007) p. 996, col. 1 [defining “proper” as “marked by

suitability, rightness, or appropriateness”].) Second, looking to the structure of the

statutory wording, the trial court’s two-day written notice requirement is consistent with

the statute’s treatment of “proper notice” and the withdrawal of time waivers in open

court as separate events. Under the court’s construction, time waivers must be withdrawn

in open court, but only after meaningful advance notice has been given. By contrast,

under Daws’s proposed construction, as a practical matter, these two events may be one

and the same, since even whispered notice in open court seconds before announcing the

withdrawal counts as “proper” notice.

Third, the trial court’s construction of section 1382 facilitates its mandatory

obligation under the statute to set a trial date immediately upon a defendant’s withdrawal

of a time waiver. (See § 1382, subd. (a)(3)(A) [“Upon the withdrawal of a general time

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waiver in open court, a trial date shall be set and all parties shall be properly notified of

that date.” (Italics added.)].) Without sufficient notice in advance, the prosecutor—who

in many situations will be managing a large inventory of misdemeanor prosecutions—

may be forced to agree to a trial date without a full understanding of his or her own

availability, or the availability of witnesses. Fourth, the court’s determination is in line

with the general requirement in criminal cases for parties to notice all pretrial motions

prior to the hearing date. (See Cal. Rules of Court, rule 4.111; Super. Ct. Contra Costa

County, Local Rules, rule 4.1(c).) Notably, a two-day notice rule is the same rule that

applies in the related situation of a motion to continue a criminal trial. (See § 1050,

subd. (b).)

Daws relies principally on the appellate division opinion in Arias v. Superior

Court (2008) 167 Cal.App.4th Supp. 1 (Arias) and the Legislature’s decision to amend

section 1382 in response to Arias. That amendment, Daws argues, evidences legislative

intent that same-day oral notice is proper notice. We do not agree. The court in Arias

examined the prior version of section 1382, which did not yet require that the withdrawal

of a time waiver take place in open court. (Ibid.; see former § 1382, amended by

Stats. 2009, ch. 424, § 1.) The defendant in Arias, after entering a general time waiver,

filed a pleading on August 17, 2007, captioned “Withdrawal of General Time Waiver.”

(Arias, supra, at p. 3.) “When counsel appeared for pretrial on September 17, 2007,

defense counsel contended it was the last day to bring petitioner to trial pursuant to . . .

section 1382, subdivision (a)(3)(A), in that it was the 30th day after revocation of the

general time waiver.” (Arias, p. 3.) The trial court set a trial date beyond the 30th day,

and then denied the defendant’s motion to dismiss for lack of a speedy trial. (Ibid.)

The appellate division disagreed with the trial court and issued a writ of mandate

directing the court to grant the motion to dismiss. The appellate division observed that

the then-current version of section 1382 “does not specify that withdrawal must be made

in open court, or specify any length of notice that is required before the withdrawal

becomes effective.” (Arias, supra, 167 Cal.App.4th Supp. at p. 3.) The appellate

division then explained: “In this case the record indicates petitioner served the notice of

withdrawal on the People prior to filing of the notice with the court, in that the district

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attorney’s file stamp appears on the file-stamped copy of the withdrawal. Therefore, the

withdrawal was made ‘after notice’ on the People, albeit very short notice. Had the

Legislature intended to limit the method of giving of notice of withdrawal, or to require a

specific minimum period of notice prior to the effective date of the withdrawal, it could

have included such specific requirements in the language of . . . section 1382. Lacking

such statutory language, we must conclude that petitioner in this case complied with the

statutory provision and successfully withdrew his general waiver.” (Arias, p. 3.)

In response to Arias, the Legislature amended section 1382 to add the requirement

that a defendant withdraw a time waiver “in open court.” The author of the amendment

explained the reason for the revision he sponsored: “ ‘Prosecution offices are facing

increased workloads due to the filing of more cases and reductions in the number of

deputy district attorneys because of fiscal difficulties. For these reasons, vertical

prosecution (one deputy handles the case from charging to sentencing) is even more rare

than it used to be, especially in garden-variety cases. As a result, deputies are handling

large numbers of case files at any given time, and they often see the file for the first time

only a few days before the next scheduled proceeding. If a general time waiver is filed

only in writing and not in open court, the distinct probability exists that it will be placed

in the file, only to be seen a few days or hours before the 30- or 60-day period lapses.’ ”

(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 250 (2009-2010 Reg. Sess.)

as amended May 7, 2009, p. 2.)

Because the Legislature simply added the open court requirement without

otherwise changing what is required for notice, Daws argues that the same-day notice

provided by the defendant in Arias remains proper under the current statute. We view the

Legislature’s response to Arias differently. In debating the amendment to section 1382,

the Legislature was aware that an undefined notice requirement could contribute to the

problem of a prosecutor not receiving actual notice of a defendant’s withdrawal of a time

waiver. (See Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading analysis of

Assem. Bill No. 250 (2009-2010 Reg. Sess.) as amended May 7, 2009, p. 3 [“The

problem is statutes fail to specify that a withdrawal must be made in open court nor do

they specify a minimum period of notice before the withdrawal becomes effective.”].)

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But the Legislature declined to address the specifics of notice, instead adding only that

time waivers must occur in open court.

It is an overreading of this Legislative history to conclude “proper notice” means

any mode of notice that supplies actual notice, so long as the withdrawal of a time waiver

occurs in open court. That may be a plausible interpretation of the statute, but it is not a

reasonable one. By leaving in place the open-ended requirement of “proper notice,” the

Legislature avoided specifying a particular notice rule and left the courts to determine the

mode and timing of notice that must precede the announcement of the withdrawal in open

court. Whatever policy considerations led the Legislature to enact the language it did, the

dispositive consideration is that the language of section 1382, subdivision (a)(3)(A) does

not mandate a particular notice rule. Instead, the statute leaves room for the Judicial

Council to adopt a state-wide rule defining proper notice, which we would urge it to do to

ensure that defendants and their counsel have advance knowledge of the required notice

procedure to be followed.

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We need not here attempt to say what the outer boundary of such a rule might be.

All we hold is that in the absence of a uniform state-wide rule or a local rule of court,

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3 No such rule presently exists in Contra Costa County, and the record does not

reflect whether there is a local custom or courtroom practice of which counsel should

have been aware requiring advance written notice of the withdrawal of a time waiver.

Assuming there was no such custom or practice, the trial court in this case appears to

have adopted her own protocol by advising counsel at the February 22 hearing that he

could provide written notice, then return two days afterward to put the withdrawal on the

record. Had counsel provided written notice on February 22, there is no reason to assume

a trial date would not have been set within 30 days of the subsequent withdrawal in open

court or, indeed, within 30 days of his written notice. Counsel instead opted to challenge

the validity of the two-day notice requirement, which we now uphold. The effort to use

this case as a vehicle to gain clarity on the “proper notice” requirement seems to us a

perfectly legitimate goal. But we see no reason to dismiss the case as a reward for doing

so, especially since Daws waited to seek writ relief until after 30 days had elapsed—

which does not suggest a genuine concern for any need to move to trial rapidly—rather

than filing his petition immediately after the February 22 hearing.

4 See Government Code section 68070, subdivision (a) (authorizing every superior

court to “make rules for its own government and the government of its officers not

inconsistent with law or with the rules adopted and prescribed by the Judicial Council”).

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individual trial courts are empowered to determine what is reasonable in light of local

practice. It may be accepted practice in some courts for defendants to provide informal

notice of their intent to withdraw a time waiver on the same day time is pulled. We do

not question the authority of those courts to continue following that approach in the

absence of any rule to the contrary, should they deem it most fitting for their local

conditions and circumstances. Nor do we question the court’s authority to require

reasonable advance notice in this case, as we have explained. The only constraint is that

whatever definition of “proper notice” is adopted, it must be consistent with the right of

speedy trial under article I, section 15 of the California Constitution and the Sixth

Amendment of the United States Constitution, as implemented by section 1382. We have

no trouble concluding that two days’ written notice prior to announcing the withdrawal of

a time waiver in open court meets that standard.

The petition for writ of mandate, prohibition, or other appropriate relief is denied.