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P. v.
Ausen, P. v. Benhoor
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People v. Ausen,
40 Cal.App.2d Supp. 831
[Appellate Department, Superior Court, County of Los Angeles.
Crim. A. No. 1795. August 24, 1940.]
[[Editor's notes:
The Vehicle Code section numbers given here are
those prior to the revision currently used.
While subsection (f) of section 476 was not
carried over into the revision as part of the same
section, the current code does contain section
21462:
The driver of any vehicle, the person in
charge of any animal, any pedestrian, and the motorman
of any streetcar shall obey the instructions of any
official traffic signal applicable to him and placed
as provided by law, unless otherwise directed by a
police or traffic officer or when it is necessary for
the purpose of avoiding a collision or in case of
other emergency, subject to the exemptions granted by
Section 21055.]]
THE PEOPLE, Respondent, v. O.
L. AUSEN, Appellant.
COUNSEL
Gibson, Dunn & Crutcher
for Appellant.
Ray L. Chesebro, City
Attorney, W. Jos. McFarland, Assistant City Attorney,
and John L. Bland, Deputy City Attorney, for Respondent.
OPINION
Schauer, J.
Defendant appeals from a
judgment of conviction of violating paragraph 1 of
subsection (c) of section 476 of the Vehicle Code of
California, which in material part reads as follows:
"Whenever traffic is controlled by official traffic
control signals exhibiting the words 'Go,' 'Caution,' or
'Stop,' or exhibiting different colored lights
successively, the following colors only shall be used,
and said terms and lights shall indicate as follows:
"...
"(c) Red alone or 'Stop'.
"1. Vehicular traffic facing
the signal shall stop before entering the nearest
crosswalk at an intersection or at such other point as
may be indicated by a clearly visible line, and shall
remain standing until green or 'Go' is shown alone. ..."
The evidence shows that
defendant, on the occasion in question, was acting as a
motorman operating a street car on tracks on a public
highway in the city of Los Angeles and that his car was
so operated in an easterly direction on Seventh Street
that it entered the intersection of Towne Avenue while a
traffic signal on the southwest corner thereof showed
the word "Stop".
[1] Defendant moved to
dismiss the complaint on the ground that the law he was
charged with violating was not applicable to motormen
operating street cars. Subsection (e) of said section
476 expressly provides that "The motorman of any street
car shall obey all official traffic signals as
applicable to vehicles ..." (with an exception not
material to this [40 Cal.App.2d Supp. 833]
case). We hold that such law is applicable to motormen
operating street cars and that the motion was properly
denied. During the trial, however, an error of law
occurred which entitles the defendant to a new trial.
[2] We do not regard the
provisions of paragraph 1, subsection (c), section 476,
Vehicle Code (above quoted), as stating a rule absolute
under all circumstances. Subsection (f) of said section,
itself, provides that "No person shall disobey the
directions of this section except when it is necessary
for the purpose of avoiding a collision or in case of
other emergency ...," thereby disclosing an intent to
establish a rule which could be obeyed within reason but
which did not call for inexorable compliance regardless
of circumstances. An emergency is not necessarily
something wholly unexpected; according to Webster's New
International Dictionary (1930) it may also comprehend a
pressing necessity or exigency. In 20 C.J., at p. 499,
we find it defined as "Any event or occasional
combination of circumstances which calls for immediate
action or remedy; ... a perplexing contingency or
complication of circumstances." [3] It was error, under
the circumstances disclosed in the record of this case,
to sustain objections to questions asked on
cross-examination of the People's principal witness and
which questions bore directly on the issue as to whether
defendant's conduct in the premises was willfully in
violation of the law or was legally justified by an
"emergency", within the meaning of the statute.
We are strengthened in our
construction of the "emergency" clause of the statute as
being applicable here by the following considerations.
Where official traffic signals have two signs
only--"Stop" and "Go"--with no preliminary warnings of
change, strict compliance with the letter of the law in
every instance (disregarding the emergency clause) would
be almost impossible of achievement and bona fide
efforts to attain such compliance would tend to defeat
one of the principal purposes of the law. Traffic
signals are not installed to retard traffic--on the
contrary their principal purpose, along with promoting
safety for users of highways generally, is to expedite
traffic movement. So important is the flow of traffic
that Vehicle Code section 511.7 provides that "Local
authorities in timing traffic signals may so regulate
the timing thereof as to permit the movement of traffic
in an orderly and safe manner at speeds slightly at
variance from the [40 Cal.App.2d Supp. 834]
speed otherwise applicable within the district or at
intersections under this code." A signal-marked
intersection with a prima facie lawful crossing speed of
15 or perhaps 25 miles per hour, according to the
district in which located, could never be approached
safely at any such speed if the operator of the vehicle
were under the absolute necessity, with penal sanction,
of stopping, in any event whatsoever whenever the signal
changed to show "Stop", "before entering the nearest
crosswalk ... [to] remain standing until green or 'Go'
is shown alone." Such an interpretation of the law would
make every signal-marked intersection of every street a
"boulevard stop"--every "Go" signal would be first a
stop signal; the flow of traffic would be but spasmodic
drippings.
Operators in attempting in
good faith to comply with such an unreasonable
construction of the law would be menaced by the
provisions of section 514 of the same code, requiring
that "No person shall drive upon a highway at such a
slow speed as to impede or block the normal and
reasonable movement of traffic ..."
Further provisions of said
section 476 disclose legislative recognition of the fact
that it would be impracticable to require a vehicle
absolutely to stop under all circumstances on a change
of signal. Subsection (b) of the cited section permits
the use of the word "Caution" and a yellow light on
traffic signals and makes the following rules applicable
when such yellow light or caution signal is displayed
(Vehicle Code, sec. 476 [b] [1]):
"Vehicular traffic facing the
signal shall stop before entering the nearest crosswalk
at the intersection or at a marked line, but if such
stop cannot be made in safety a vehicle may be driven
cautiously through the intersection or past such
signal." There is no more reason for recognizing the
physical fact that a moving vehicle requires time and
space in which to change its inertia from motion to
repose when confronted with a yellow light than there is
when it faces a red light. In either case the duty to
stop is imperative unless the circumstances depicted by
subsection (b) (1) or by subsection (f), are present.
Since in the instant case the traffic signals involved
did not include the yellow or "Caution" signal the
provisions of said subsection (b) (1) are inapplicable
and defendant must justify his conduct, if at all, under
the "emergency" clause of subsection (f). [40
Cal.App.2d Supp. 835]
[4] Certainly a bona fide
effort must be made, and reasonable care used, to comply
with the law in every instance. But when a person
operating a vehicle is approaching an intersection at a
speed which is otherwise lawful under all extant
circumstances (see Vehicle Code, sec. 511) and when the
signal, without preliminary warning, changes from "Go"
to "Stop" while the vehicle is so close to the crosswalk
line that it is physically impossible to stop it before
crossing that line, the operator is entitled, if charged
with a violation of the law, as was the defendant here,
to show the circumstances under which he proceeded, in
order that it may be determined as a fact whether the
"emergency" contemplated by the law existed. The
objections to the three questions addressed to the
witness Fujiki inquiring concerning the weather, the
speed of the street car when the witness first saw it
(while it was opposite the center of a safety zone) and
its speed at the time the signal changed (the position
of the car at that time, according to later adduced
testimony of the witness Ashworth, being approximately
10 feet west of the signal) were improperly interposed
and should have been overruled.
The judgment is reversed and
the cause is remanded to the municipal court for a new
trial.
Shaw, P. J., concurred.
People v. Benhoor
Also known as People v. Beohoor
People v. Benhoor (2009)177
Cal.App.4th 1308 , -- Cal.Rptr.3d --
[No. B212593. Second Dist., Div. Seven. Sep. 24, 2009.]
[As modified Oct. 20, 2009.]
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN PANAH
BENHOOR, Defendant and Appellant.
(Superior Court of Los Angeles County, No. 9384086, R.
Drescher, Temporary Judge. fn. * )
(Opinion by Perluss, P. J., with Woods, J., and Zelon,
J., concurring.)
COUNSEL
Law Offices of Hamid Soleimanian and Hamid Soleimanian
for Defendant and Appellant.
Rockard J. Delgadillo, City Attorney, Debbie Lew,
Assistant City Attorney, and Eric Shannon, Deputy City
Attorney, for Plaintiff and Respondent. [177 Cal.App.4th
1313]
OPINION
PERLUSS, P. J.-
After he was cited for driving at an unsafe speed,
Justin Panah Benhoor fn. 1 unsuccessfully contested the
charged infraction through a trial by written
declaration. Dissatisfied with the adverse decision, he
exercised his right to a trial de novo. The clerk set
the new trial for a date 57 calendar days after receipt
of Benhoor's new trial request. Arguing that rule 4.210
of the California Rules of Court, which governs trials
by declaration, requires the new trial be held within 45
calendar days of the clerk's receipt of the new trial
request, Benhoor moved to dismiss the citation. The
trial court denied the motion and convicted Benhoor of
the infraction. Although we agree with Benhoor's
interpretation of rule 4.210(b)(7), fn. 2 we disagree
with his contention the remedy for this violation of the
rule is dismissal pursuant to Penal Code section 1382
(section 1382), which provides a statutory right to a
speedy trial and requires dismissal of an action that is
not timely tried absent a showing of good cause.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Benhoor was found guilty on December 11, 2007 of driving
at an unsafe speed (Veh. Code, § 22350), fn. 3 following
a trial by written declaration (Veh. Code, § 40902,
subd. (a)(1)). He filed a timely written request for a
trial de novo (rule 4.210(b)(7)), which was received by
the clerk on December 19, 2007. On December 21, 2007
Benhoor's request was granted (Veh. Code, § 40902, subd.
(d)); and the new trial was set for February 14, 2008,
57 days after the written request was received.
At the commencement of trial Benhoor moved to dismiss
the citation pursuant to section 1382, subdivision
(a)(3), which requires a defendant in a misdemeanor or
infraction case to be brought to trial within 30 days
after entry of an order granting a new trial from which
no appeal is taken. The trial court denied the motion,
and Benhoor was found guilty. fn. 4 [177 Cal.App.4th
1314]
The appellate division of the superior court affirmed
the conviction, rejecting Benhoor's "assumption that an
order granting a request for a trial de novo, following
a conviction in a trial by written declaration pursuant
to Vehicle Code section 40902, is the legal equivalent
of 'an order granting a new trial from which no appeal
is taken' within the meaning of section 1382,
subdivision (a)(3),"--essentially finding the statutory
right to a speedy trial was inapplicable if the
defendant proceeded by electing a trial by written
declaration. We ordered the case transferred to this
court to secure uniformity of decision and to settle an
important question of law. (Rules 8.1002, 8.1008.)
DISCUSSION
1. Governing Law
a. The right to a trial by written declaration
[1] To "promote[] judicial economy and convenience" for
defendants, Vehicle Code section 40902, subdivision (a),
fn. 5 permits defendants charged with Vehicle Code
infractions to elect to have a trial by written
declaration. (People v. Kennedy (2008) 168 Cal.App.4th
1233, 1239 ( Kennedy).) "If the defendant is
dissatisfied with a decision of the court [after a trial
by written declaration], the defendant shall be granted
a trial de novo." (Veh. Code, § 40902, subd. (d).) "The
procedure of trial by written declaration is an
accommodation to defendants, which obviates the
expenditure of time and money to appear in court to
defend a minor traffic infraction or violation of an
ordinance. It is an election which is solely within the
defendant's discretion. It also promotes judicial
economy by reserving courtroom time and resources for
more serious offenses. Yet the defendant retains the
right to request a court trial in the event of an
adverse decision." (Kennedy, at p. 1241.)
The Legislature authorized the Judicial Council to adopt
rules and forms for conducting trials by declaration.
(Veh. Code, § 40902, subd. (a)(2).) Rule 4.210 now sets
forth statewide procedural requirements for trials by
written declaration. In particular, rule 4.210(b)(7)
implements Vehicle Code section 40902, subdivision (d)'s
mandate that a defendant dissatisfied with a decision of
the court in a trial-by-declaration proceeding "shall be
granted a trial de novo." [177 Cal.App.4th 1315]
Rule 4.210(b)(7) provides in part, "If the defendant
files a Request for New Trial (Trial de Novo) (form
TR-220) within 20 calendar days after the date of
delivery or mailing of the Decision and Notice of
Decision (form TR-215), the clerk must set a trial date
within 45 calendar days of receipt of the defendant's
written request for a new trial." Rule 4.210 does not
specify dismissal or any other remedy for failure to set
a trial date within 45 calendar days of receipt of the
defendant's written request for a new trial. Moreover,
rule 4.210(c) generally provides, "Due dates and time
limits must be as stated in this rule, unless changed or
extended by the court. The court may extend any date,
but the court need not state the reasons for granting or
denying an extension on the record or in the minutes."
b.The right to a speedy trial
[2] The right to a speedy trial is a fundamental right
guaranteed by both the Sixth Amendment to the United
States Constitution and article I, section 15 of the
California Constitution. (Rhinehart v. Municipal Court
(1984) 35 Cal.3d 772, 776.) The purpose of the speedy
trial right, applicable in both felony and misdemeanor
prosecutions, is "(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of
the accused; and (iii) to limit the possibility that the
defense will be impaired." (Barker v. Wingo (1972) 407
U.S. 514, 532 [92 S.Ct. 2182, 33 L.Ed.2d 101]; People v.
Martinez (2000) 22 Cal.4th 750, 768.) "To implement an
accused's constitutional right to a speedy trial, the
Legislature enacted section 1382." fn. 6 (Rhinehart, at
p. 776; accord, People v. Harrison (2005) 35 Cal.4th
208, 225 ["California Legislature has 're-expressed and
amplified' these fundamental guarantees by various
statutory enactments, including Penal Code section
1382"]; Martinez, at p. 766 ["statutory speedy trial
provisions, Penal Code sections 1381 to 1389.8, are
'supplementary to and a construction of' the state
constitutional speedy trial guarantee"].) [177
Cal.App.4th 1316]
The federal and state constitutional speedy trial rights
differ from each other in certain respects and also
differ from the statutory right set forth in section
1382 even though it was enacted to amplify those
constitutional rights. (See People v. Martinez, supra,
22 Cal.4th at p. 765 ["[a]lthough similar in wording and
spirit to the federal Constitution's speedy trial
guarantee, the state Constitution's guarantee has
independent force and operates somewhat differently from
the federal provision"].) One significant difference is
"the point at which the speedy trial right attaches."
(Id. at p. 754.) "Under the federal Constitution . . .
the speedy trial right does not attach upon the filing
of a felony complaint, but only upon either arrest with
continuing restraint or the filing of an indictment, an
information, or a complaint charging a misdemeanor.
Under the state Constitution, by contrast, the filing of
a felony [or misdemeanor] complaint is sufficient to
trigger speedy trial protection." (Id. at p. 765; see
Serna v. Superior Court (1985) 40 Cal.3d 239, 248 [right
to speedy trial in misdemeanor prosecution "attaches
under the California Constitution when a criminal
complaint is filed"].) fn. 7 Notwithstanding "the United
States Supreme Court has clearly rejected the
proposition that the constitutional right to a speedy
trial '. . . can be quantified into a specified number
of days or months'" (Townsend v. Superior Court (1975)
15 Cal.3d 774, 781-782), section 1382 enforces the
speedy trial right with specific deadlines measured by
days after certain events, including arraignment,
declaration of a mistrial or entry of an order granting
a new trial from which no appeal is taken, that differ
depending on whether the case is a felony, on one hand,
or a misdemeanor or infraction, on the other hand. fn. 8
(Compare § 1382, subd. (a)(2) (felony cases) with §
1382, subd. (a)(3) (misdemeanor or infraction cases).)
[3] The nature of the showing a defendant must make to
obtain a dismissal for violation of his or her speedy
trial right also differs depending on the source of that
right. "For the federal Constitution's speedy trial
right, the United States Supreme Court has articulated a
balancing test that requires consideration of the length
of the delay, the reason for the delay, the defendant's
assertion of the right, and prejudice to the defense
caused by the delay. [Citation.] Because delay that is
'uncommonly long' triggers a presumption of prejudice
[citation], a defendant can establish a speedy trial
[177 Cal.App.4th 1317] claim under the Sixth Amendment
without making an affirmative demonstration that the
government's want of diligence prejudiced the
defendant's ability to defend against the charge."
(People v. Martinez, supra, 22 Cal.4th at p. 755.)
"Under the state Constitution, by comparison, the
showing that the defendant must make depends upon
whether the allegedly unreasonable delay occurred before
or after the defendant's statutory speedy trial rights
attached. . . . No affirmative showing of prejudice is
necessary to obtain a dismissal for violation of the
state constitutional speedy trial right as construed and
implemented by statute. [Citation.] Instead, 'an
unexcused delay beyond the time fixed in section 1382 of
the Penal Code without defendant's consent entitles the
defendant to a dismissal.'" (People v. Martinez, supra,
22 Cal.4th at p. 766; see Gallenkamp v. Superior Court
(1990) 221 Cal.App.3d 1, 17 ["[u]nder Penal Code section
1382 analysis, prejudice is presumed once the statutory
period has passed; a defendant need not show any other
harm"]; see generally § 1382, subd. (a).)
[4] However, "[b]ecause the state constitutional speedy
trial right is self-executing and broader than its
statutory implementation, a defendant may claim a
violation of the state Constitution's speedy trial right
based on delay not covered by any statutory speedy trial
provision. [Citation.] Thus, a defendant charged with a
felony may predicate a claimed speedy trial violation on
delay occurring after the filing of the complaint and
before the defendant was held to answer the charge in
superior court. In this situation, when the claimed
speedy trial violation is not also a violation of any
statutory speedy trial provision, [the California
Supreme Court] has generally required the defendant to
affirmatively demonstrate that the delay has prejudiced
the ability to defend against the charge. [Citation.] In
particular, [the Court has] held that when a defendant
seeks dismissal based on delay after the filing of the
complaint and before indictment or holding to answer on
felony charges, a court must weigh 'the prejudicial
effect of the delay on defendant against any
justification for the delay.' [Citations.] No
presumption of prejudice arises from delay after the
filing of the complaint and before arrest or formal
accusation by indictment or information [citation];
rather, the defendant seeking dismissal must
affirmatively demonstrate prejudice [citation]." (People
v. Martinez, supra, 22 Cal.4th at pp. 766-767.)
Benhoor does not contend that he was prejudiced by being
brought to trial 12 days after the deadline set forth in
rule 4.210(b)(7) had passed or that the delay was
"uncommonly long," which would be required to establish
either a federal or state constitutional violation.
Rather, Benhoor asserts the failure to bring him to
trial within 45 days of receipt of his request for a new
trial was a violation of rule 4.210(b)(7) and section
1382, subdivision (a)(3), and thus dismissal of the
citation was required pursuant to that section. [177
Cal.App.4th 1318]
2. The Trial Court Violated Rule 4.210(b)(7) by Failing
To Bring Benhoor to Trial Within 45 Days of Receipt of
Benhoor's Request for a New Trial
Rule 4.210(b)(7) requires the clerk to "set a trial date
within 45 calendar days of receipt of the defendant's
written request for a new trial." The People contend
there was no violation of the rule because Benhoor's new
trial date was set on December 19, 2007, two days after
receipt of his written request. According to the People,
the rule only requires the clerk to schedule a hearing
within 45 days, which in fact occurred, not that Benhoor
had to be "brought to trial"--the language used in
section 1382, subdivision (a)(3)--within 45 days. fn. 9
As the People suggest, some statutes and rules
differentiate the act of scheduling a hearing from the
holding of the hearing. (See, e.g., Bus. & Prof.
Code, § 1323 ["Upon receipt of a notice of defense by
the licensee or registrant, the matter shall, within 15
days, be set for hearing. The hearing shall be held as
soon as possible, but not later than 30 days after
receipt of that notice."]; rule 5.605(f) ["[w]ithin 30
days from the filing of the petition, the court must (1)
grant the petition, (2) deny the petition, or (3) set a
hearing on the petition to be conducted within 30 days
thereafter"].) However, we need not compare those or
other enactments to rule 4.210 to determine the intent
of its drafters; we need only examine the history of the
rule itself. fn. 10
Rule 4.210 was originally adopted as rule 828, effective
January 1, 1999. Former rule 828(b)(7) in part provided,
"If defendant files a Request for New Trial (Trial de
Novo) (form TR-220) within 20 calendar days after the
date of mailing of the Decision and Notice of Decision,
the clerk shall set a trial date that shall be within 45
calendar days of receipt of defendant's written request
for a trial de novo." (Third italics added.) The
original language of the rule, therefore, clearly
imposed a requirement that the defendant be brought to
trial within 45 days of the request for a new trial, not
merely that trial be scheduled within that period. The
deletion of the clarifying phrase "that shall [177
Cal.App.4th 1319] be" from former rule 828(b)(7) was
part of the January 1, 2007 rules amendments, adopted
June 30, 2006, reorganizing, renumbering, reformatting
and amending many of the Rules of Court. In addition to
revising former rule 828(b)(7) (primarily substituting
"must" for "shall"), it was relocated from former title
2 to title 4 and renumbered as rule 4.210(b)(7).
These changes to former rule 828(b)(7) were intended to
be stylistic, not substantive. In its June 15, 2006
report to the Judicial Council summarizing the then
proposed reorganization of the rules, the Administrative
Office of the Courts fn. 11 explained, "The current
rules and standards are not well organized and are
difficult to use. The format of the rules and standards
could be easier to read." (Admin. Office of Courts,
Report on Reorganization of the Cal. Rules of Court,
Jun. 15, 2006, p. 6.) fn. 12 Accordingly, in addition to
reordering and renumbering the rules, "[t]he format of
the rules and standards will be changed to make them
easier to read and understand. Many of the rules and
standards will be amended for clarity and consistency of
style. The reorganization is not intended to make
substantive changes to the rules and standards, with
limited exceptions." (Id. at pp. 6-7.) The substantive
changes were specifically described in the report--the
principal changes were made to the juvenile rules. (Id.
at p. 7, fn. 9.) The change to former rule 828(b)(7) was
not identified as substantive. The report also stated,
"[S]tylistic changes are not intended to create
substantive changes." (Id. at p. 11.) Rather, many of
the rules "have been amended for consistency of style.
To conform to contemporary usage, older rules still
using 'shall' have generally been modified to use
'must'; the phrase 'pursuant to' and has been replaced
by 'under'; and the phrase 'prior to' has been replaced
by 'before.' Other instances of archaic terminology or
legalese have been changed. Some rules have been recast
in the active voice instead of the passive voice."
(Ibid.)
[5] Whatever arguable ambiguity may exist in the use of
the word "set" in rule 4.210(b)(7) as it now reads, the
plain meaning of former rule 828(b)(7), coupled with the
express statement that the 2007 amendments to [177
Cal.App.4th 1320] this rule were not intended to be
substantive, leave no doubt rule 4.210(b)(7) requires a
defendant's new trial commence within 45 days of the
court's receipt of his or her request for a new trial.
Accordingly, bringing Benhoor to trial 57 days after the
court's receipt of his request for a new trial violated
rule 4.210(b)(7). fn. 13 The question remains, however,
whether the citation should have been dismissed as a
result of that violation.
3. Violation of Rule 4.210(b)(7) Did Not Require
Dismissal of Benhoor's Citation
Conceding that rule 4.210 itself provides no remedy for
a violation of its time limits--and at least implicitly
recognizing he is unable to demonstrate either the
"uncommonly long" delay or prejudice necessary to
establish a violation of his federal or state
constitutional right to a speedy trial--Benhoor argues
the delay in setting his new trial in violation of rule
4.210(b)(7) constitutes a violation of his statutory
right to a speedy trial under section 1382, subdivision
(a)(3), and dismissal is required pursuant to that
section. Benhoor's argument suffers from two fatal
flaws.
[6] First, by its own terms section 1382, subdivision
(a)(3), does not apply to a request for a new trial
following a trial by written declaration. That
subdivision requires the court to hold a new trial
within 30 days in a case involving a defendant charged
with a misdemeanor or infraction only when the retrial
follows "a mistrial, an order granting a new trial from
which no appeal is taken, or an appeal from a judgment."
There was, of course, neither a mistrial nor a reversal
on appeal in this case. Although there was an order
granting a new trial, that order was not appealable;
granting the new trial was automatic so long as the
request was timely. (See Veh. Code, § 40902, subd. (d).)
An "order . . . from which no appeal is taken"
necessarily refers only to appealable new trial orders,
that is, to those new trial orders made pursuant to
Penal Code section 1181 appealable by the People. (See
Pen. Code, § 1238, subd. (a)(3); see generally People v.
Andrade (2000) 79 Cal.App.4th 651, 655, fn. 3 ["[t]he
Legislature has granted the People the right to appeal
from an order granting a new trial"].) No such order was
made in this case.
[7] Second, Benhoor's right to a new trial following the
adverse decision in the trial by written declaration is
governed by Vehicle Code section 40902, which contains
no time limit for conducting the new trial, and by rule
4.210, implementing the right to trial by written
declaration, not the more general [177 Cal.App.4th 1321]
language of section 1382. Although we believe there is
no conflict between these statutes, even if there were,
the more specific provisions of the Vehicle Code and
rule 4.210 would control: "It is a settled rule of
statutory construction that a special statute dealing
expressly with a particular subject controls and takes
priority over a general statute." (Lacy v. Richmond
Unified Sch. Dist. (1975) 13 Cal.3d 469, 472; see, e.g.,
Lake v. Reed (1997) 16 Cal.4th 448, 464 ["more specific
statute controls over a more general one"]; Cumero v.
Public Employment Relations Bd. (1989) 49 Cal.3d 575,
587 [same].) "The fact that the Legislature has enacted
a specific statute covering much the same ground as a
more general law is a powerful indication that the
Legislature intended the specific provision alone to
apply. Indeed, in most instances, an overlap of
provisions is determinative of the issue of legislative
intent and 'requires us to give effect to the special
provision alone in the face of the dual applicability of
the general provision . . . and the special provision. .
. .'" (People v. Jenkins (1980) 28 Cal.3d 494, 505-506.)
Benhoor acknowledges this rule of statutory construction
and essentially admits its applicability. (Cf. Kennedy,
supra, 168 Cal.App.4th at p. 1240 ["[w]e construe
subdivision (d) of [Vehicle Code] section 40902 and rule
4.210(b)(7) to be specific provisions limiting the
general right to appeal from a conviction of an offense
that is an infraction"].) Nevertheless, he contends
section 1382, subdivision (a)(3), must be applicable--or
at least its remedy of dismissal grafted onto rule
4.210(b)(7)--because otherwise violation of rule
4.210(b)(7) is without a remedy.
Benhoor's position arguably finds some support in Sykes
v. Superior Court (1973) 9 Cal.3d 83 in which the
Supreme Court, considering a situation that, like the
case at bar, was not "on its face" covered by section
1382, fn. 14 held that statute constitutes a legislative
endorsement of dismissal as a judicial sanction for
violation of the constitutional guarantee of a speedy
trial and further held a delay in trial beyond the time
limits specified in section 1382 was prima facie
evidence of a violation of the defendant's
constitutional rights. (Sykes, at p. 89.) [177
Cal.App.4th 1322]
[8] However, in Crockett v. Superior Court (1975) 14
Cal.3d 433, 438 the Court explained, "Sykes involved the
applicability of section 1382 in a situation not
expressly covered by that or any other statute. . . . In
the absence of specific statutory coverage we applied in
Sykes the self-executing constitutional provision and
held that the accused was entitled to the dismissal of
charges which were not brought to trial within the
60-day period." Here, in contrast, there is specific
statutory authority. As discussed, Vehicle Code section
40902, subdivision (d), grants a defendant dissatisfied
with the results of a trial by written declaration the
right to a new trial, but imposes no time limit for
conducting that trial. Similarly, rule 4.210, although
requiring the new trial be held within 45 days of
receipt of the defendant's written request, expressly
permits the court to extend that deadline without any
statement of reasons on the record, let alone a showing
of good cause. Thus, there is simply no basis, as there
was in Sykes, to suggest there has been a legislative
determination a delay in trial beyond 45 days from the
defendant's request constitutes prima facie evidence of
a violation of Benhoor's constitutional right to a
speedy trial.
[9] We agree with Benhoor that a defendant's election to
proceed by trial by written declaration does not
constitute an implied waiver of the defendant's
constitutional right to a speedy trial. fn. 15 By
electing the convenience of a trial by written
declaration, however, a defendant does waive the
statutory right to a speedy trial and the remedy of
dismissal in the absence of good cause for a delay,
which is not necessarily a violation of constitutional
magnitude. (See Townsend v. Superior Court (1975) 15
Cal.3d 774, 781 ["The right to a speedy trial is
undeniably 'as fundamental as any of the rights secured
by the Sixth Amendment' [citation], and we have
previously stated in dictum that counsel may not waive
this constitutional right over his client's objections.
[Citation.] In contrast, however, the statutory right to
be tried within 60 days (§ 1382, subd. 2) cannot
properly be termed 'fundamental' in the foregoing sense
and therefore beyond counsel's primary control."];
People v. Shane (2004) 115 Cal.App.4th 196, 202 ["the
statutory right to be tried on a misdemeanor complaint
within 30 days under Penal Code section 1382 'cannot
properly be termed "fundamental"'"].)
A defendant who elects to proceed by trial by written
declaration is still able to pursue federal and state
constitutional speedy trial claims if there is a [177
Cal.App.4th 1323] viable basis for them, including a
demonstration of prejudice or an uncommonly long delay.
As discussed, Benhoor makes no such constitutional
claim; and on this record no such claim would have
merit.
DISPOSITION
The judgment is affirmed.
Woods, J., and Zelon, J., concurred.
FN *. (Pursuant to Cal. Const., art. VI, § 21.)
FN 1. Benhoor's name has frequently been misspelled as
"Beohoor" in the record and the briefs filed in this
case. Throughout this opinion we use the spelling
provided by his counsel at oral argument.
FN 2. References to a rule or rules are to the
California Rules of Court.
FN 3. The citation stated Benhoor was driving
approximately 44 miles per hour on a street with a
posted speed limit of 30 miles per hour. Vehicle Code
section 22350 provides, "No person shall drive a vehicle
upon a highway at a speed greater than is reasonable or
prudent having due regard for weather, visibility, the
traffic on, and the surface and width of, the highway,
and in no event at a speed which endangers the safety of
persons or property."
FN 4. The record on appeal does not contain either a
settled statement or a reporter's transcript of the oral
proceedings at trial. Benhoor does not challenge his
conviction on any ground other than the asserted denial
of his statutory right to a speedy trial.
FN 5. Vehicle Code section 40902, subdivision (a),
states, "(a)(1) The court, pursuant to this section,
shall, by rule, provide that the defendant may elect to
have a trial by written declaration upon any alleged
infraction, as charged by the citing officer, involving
a violation of this code or any local ordinance adopted
pursuant to this code, other than an infraction cited
pursuant to Article 2 (commencing with Section 23152) of
Chapter 12 of Division 11. [¶] (2) The Judicial Council
may adopt rules and forms governing trials by
declaration in accordance with this section. Any rule or
form adopted by the Judicial Council pursuant to this
paragraph shall supersede any local rule of a court
adopted pursuant to paragraph (1)."
FN 6. With respect to misdemeanor and infraction cases,
Penal Code 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: [¶] . . .
[¶] (3) Regardless of when the complaint is filed, when
a defendant in a misdemeanor or infraction case is not
brought to trial within 30 days after he or she is
arraigned or enters his or her plea, whichever occurs
later, if the defendant is in custody at the time of
arraignment or plea, whichever occurs later, or in all
other cases, within 45 days after the defendant's
arraignment or entry of the plea, whichever occurs
later, or in case the cause is to be tried again
following a mistrial, an order granting a new trial from
which no appeal is taken, or an appeal from a judgment
in a misdemeanor or infraction case, within 30 days
after the mistrial has been declared, after entry of the
order granting the new trial, or after the remittitur is
filed in the trial court, or within 30 days after the
date of the reinstatement of criminal proceedings
pursuant to Chapter 6 (commencing with Section 1367)." A
number of exceptions to dismissal are provided, but are
not relevant to our analysis.
FN 7. Unlike the filing of a misdemeanor complaint, the
filing of a felony complaint does not trigger federal
speedy trial right protection because "[a] felony
complaint, unlike a misdemeanor complaint, does not
confer trial jurisdiction. It invokes only the authority
of a magistrate, not that of a trial court." (Serna v.
Superior Court, supra, 40 Cal.3d at p. 257.)
FN 8. The due process clauses of the Fifth and
Fourteenth Amendments of the United States Constitution
protect criminal defendants against unreasonable and
prejudicial delays before the speedy trial rights
attach. (Serna v. Superior Court, supra, 40 Cal.3d at p.
251; Schelring v. Superior Court (1978) 22 Cal.3d 493,
505.)
FN 9. There is no question that, if applicable, section
1382, subdivision (a)(3), required Benhoor be brought to
trial within 30 days after entry of the order granting a
new trial.
FN 10. "The ordinary principles of statutory
construction govern our interpretation of the California
Rules of Court. [Citations.] Our objective is to
determine the drafter's intent. If the rule's language
is clear and unambiguous, it governs. [Citation.]
Experience teaches, however, that unforeseen ambiguities
can and do come to light despite the drafters'
considered efforts to avoid them. In such cases, courts
may consult appropriate extrinsic sources to clarify the
drafters' intent. [Citation.] Certainly the advisory
committee's official comments on the rules, which are
intended for this purpose, may properly be consulted."
(Alan v. American Honda Motor Co., Inc. (2007) 40
Cal.4th 894, 902; accord, Bi-Coastal Payroll Services,
Inc. v. California Ins. Guarantee Assn. (2009) 174
Cal.App.4th 579, 585.)
FN 11. Although the staff of the Administrative Office
of the Courts presented the recommendation to the
Judicial Council that it approve the changes to the
rules, the Judicial Council's Rules and Projects
Committee and various advisory committees were
"extensively involved in [the] proposal to reorganize
and revise" the rules. (Admin. Office of Courts, Report
Summary on Reorganization of the Cal. Rules of Court,
June 15, 2006, p. 1, fn. 1.)
FN 12. We provided the parties with a computer link to
this report, as well as a copy of an October 2, 1998
report from the Traffic Advisory Committee to the
Judicial Council of California, entitled "Traffic--Trial
by Written Declaration (new rule 828 of the California
Rules of Court and new Forms TR-200, TR-205, TR-210,
TR-215, TR-220, and TR-225) (Action Required)," notified
them we intended to take judicial notice of both reports
pursuant to Evidence Code sections 452 and 459 and
invited their response. (See Evid. Code, § 459, subd.
(d).) In reply the People stated they had no objection
to the court taking judicial notice of this material but
otherwise provided no substantive comment. (In their
reply the People suggested neither party had "proposed
or briefed any issue based on either of these voluminous
documents" and requested, "if the Court intends to raise
an issue based on either or both of those documents,"
that we "inform the parties of the issue and permit
supplemental briefing as to that issue." Of course, the
proper construction of rule 4.210(b)(7)--the sole
purpose for referring to these documents--was the
central issue in the appeal.) Benhoor did not respond.
We now take judicial notice of these two reports.
FN 13. Rule 4.210(c) authorizes the trial court to
extend any date in rule 4.210 without a showing of good
cause and without stating its reasons on the record. No
order extending rule 4.210(b)(7)'s 45-day time limit was
made when Benhoor's trial date was set for February 14,
2008.
FN 14. Sykes's guilty plea was set aside in a
post-conviction habeas corpus proceeding, and the
superior court was directed by the Court of Appeal to
retry the case. (Sykes v. Superior Court, supra, 9
Cal.3d at p. 86.) Sykes sought a writ of mandate to
compel dismissal of the felony information when no new
trial had been scheduled for a period of 228 days
following the appellate court's order, arguing he was
entitled to a new trial within 60 days under section
1382. (Sykes, at pp. 88-89.) At the time section 1382
mandated retrial within 60 days of the filing of the
remittitur after a new trial had been ordered on appeal
but had no provision governing the time for trial
following issuance of a writ that in effect granted a
new trial. Shortly after the Sykes decision, section
1382 was amended to apply to new trials ordered in writ
proceedings. (See Stats. 1973, ch. 847, § 1, pp.
1513-1514.)
FN 15. A defendant, however, must expressly waive some
trial rights to proceed by way of trial by written
declaration. "Prior to a trial by written declaration,
the court must inform the defendant in writing of the
nature of the proceedings, of his or her right to
confront and cross-examine witnesses, to subpoena
witnesses on his or her behalf, and to hire counsel at
his or her own expense, and obtain a voluntary waiver of
these rights. ([Veh. Code, ]§ 40901, subd. (c).)"
(Kennedy, supra, 168 Cal.App.4th at pp. 1239-1240.)