Filed 8/9/23

CERTIFIED FOR PUBLICATION

APPELLATE DIVISION

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ORANGE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DAVISBRAGDON,

Defendant and Appellant. 30

- 2022

- 01248296

(Super. Ct. No. 21NM14212)

OPINION

Appeal from a judgment of the Superior Court of Orange County, North

Justice Center, James Rogan and Jeremy Dolnick, Judges. Reversed.

Martin Schwarz, Public Defender, Adam Vining, Assistant Public

Defender, and Shawn McDonald, Deputy Public Defender, for Defendant and

Appellant.

Todd Spitzer, District Attorney, and Thomas Collins, Deputy District

Attorney, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant James Davisbragdon of violating a

protective order (Pen. Code, 1 § 166, subd. (c)(1)). He contends the trial court

violated his right to a speedy trial. We agree and reverse.

1 All undesignated statutory references are to the Penal Code.2 FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 2021, the People charged defendant with inflicting

corporal injury in violation of section 273.5, subdivision (a) (count 1), and

violating a protective order in violation of section 166, subdivision (c)(1)

(count 2). On December 2, 2021, while in custody, defendant pleaded not

guilty to both counts and did not waive time for trial.

On January 3, 2022 (the last day for trial under section 1382 without a

time waiver), defendant remained in custody but was not transported to court

because he had recently tested positive for COVID

- 19 and was not yet

medically cleared for transport. Dr. C. Chiang, the Medical Director of

Correctional Health Services, submitted a declaration stating that if

defendant was asymptomatic on January 7, he could be transported to court

on January 10. The trial court found good cause to set the case for trial on

January 10, 2022.

On January 10, the People and defendant answered ready for trial.

Defendant remained in custody but was not transported to court. The trial

court (Judge James Rogan) noted defendant was medically cleared for

transport to court, but stated it was too late in the day to obtain a jury panel

and transport defendant to court as it was approximately 11:30 a.m. Over

de fendant’s objection, the court found good cause to continue the trial to

January 11, 2022. Defendant moved to dismiss the case under section 1382,

and the court stated it would entertain that motion on January 11. The court

granted the People’s motion to dismiss count 1.

On January 11, 2022, defendant remained in custody and was

transported to court. He again moved to dismiss the case pursuant to section

1382. The trial court (Judge Jeremy Dolnick) denied the motion and the case

proceeded to trial on count 2. The jury found defendant guilty.3 DISCUSSION

Defendant argues his statutory right to a speedy trial was violated

when the trial court continued his jury trial from January 10 to J anuary 11

without good cause. The People do not claim there was good cause for the

continuance, and rightfully so. (See Jackson v. Superior Court (1991) 230

Cal.App.3d 1391, 1394 [sheriff’s failure to timely transport defendant to court

is not good cause for continuance]; People v. Cole (2008) 165 Cal.App.4th

Supp. 1, 16

- 17 [lack of available courtrooms due to court congestion is not

good cause for continuance].)

Instead, the People argue the conviction should be affirmed because

de fendant has not established prejudice from the delay. Defendant asserts

he need not show prejudice because this misdemeanor case could not be

refiled if dismissed under section 1382. After reviewing the relevant

statutory and decisional authority, we hold that on appeal a defendant must

establish prejudice from the denial of his statutory right to a speedy trial. In

this misdemeanor case, where defendant was convicted after trial, and where

none of the exceptions in section 1387 would permit the case to be refiled,

defendant has established prejudice.

As noted, there is no dispute that defendant’s right to a speedy trial

under section 1382 was violated when the trial court continued the trial from

January 10 to January 11 without good cause. The general rule under

section 1387 prohibits a misdemeanor from being refiled if it is dismissed

pursuant to section 1382. (§ 1387, subd. (a).) There are exceptions to this

general rule; most of them apply to domestic violence cases. (§ 1387, subds.

(a)(1)

- (4 ) & (b).) Although the People charged defendant with domestic

violence crimes, none of the exceptions in section 1387 apply because both

sides answered ready for trial.4

If this case was before us on a pretrial writ, there is no question that

defendant would be entitled to relief because a defendant may seek pretrial

writ review of the denial of a statutory speedy trial without demonstrating

prejudice. ( People v. Egbert (1997) 59 Cal.App.4th 503, 512.) But after a

conviction, a defendant must d emonstrate a statutory speedy trial violation

and “prejudice flowing from that delay.” ( Ibid. )

This point is illustrated in People v. Wilson (1963) 60 Cal.2d 139. In

Wilson, the trial court continued the defendant’s trial without good cause and

over his objection. The defendant appealed, claiming the erroneous denial of

his statutory speedy trial right required reversal even in the absence of

prejudice. The court agreed the defendant’s statutory speedy trial right was

violated. ( Id. at p. 145.) And prior to the commencement of the trial, the

defendant did not need to show prejudice to obtain relief. ( Id. at p. 151.) But

on appeal, “[t]he charges are no longer pending against defendant; the delay

has ended, and [defendant] has been duly tried and convicted. It is, very

simply, too late for defendant to seek to be relieved of a delay that no longer

exists.” ( Ibid. ) And although the defendant can seek appellate review, on

appeal he must “show that the error was a prejudicial one.” ( Id. at p. 152.)

Such a standard comports with the California Constitution, which prohibits a

judgment from being set aside unless an error results in a miscarriage of

justice. ( Ibid. , citing Cal. Const., art. VI, § 4 1/2 (now Cal. Const., art. VI, §

13).)

But the Wilson court also observed that situations exist where the

denial of a speedy trial motion to dismiss is prejudicial and relief can be

obtained on that basis on appeal. ( Id. at pp. 152

- 153.) For example, if the

statute of limitations would have barred a new prose cution if the motion to

dismiss was granted, the erroneous denial of the motion would prejudice the5

defendant. ( Ibid. ) And as relevant here, “[I]n a misdemeanor prosecution the

erroneous denial of such a motion to dismiss would be rendered prejudicial by

Penal Code section 1387, which provides in pertinent part that an order of

dismissal (under § 1382) ‘is a bar to any other prosecution for the same

offense if it is a misdemeanor.

. . .’ [Citation.]” ( People v. Wilson, supra, 60

Cal .2d at p. 153, fn. 5.)

Since Wilson, with one exception discussed below, appellate courts have

consistently held that a defendant must establish prejudice on appeal to

obtain relief for a speedy trial violation. ( People v. Johnson (1980) 26 Cal.3d

557, 574

- 575 [statutory speedy trial violation requires showing of prejudice

on appeal]; People v. Martinez (2000) 22 Cal.4th 750, 769 [prejudice is

required for statutory speedy trial claim on appeal]; People v. Giron

- Chamul

(2016) 245 Ca l.App.4th 932, 956 [on appeal defendant must demonstrate

prejudice from denial of statutory speedy trial right].)

The exception to these holdings is Avila v. Municipal Court (1983) 148

Cal.App.3d 807. The case has an unusual procedural history that is not

relevant to this appeal. But the holding of the case is that a misdemeanor

defendant may appeal the denial of his statutory right to a speedy trial after

pleading guilty. ( Id. at p. 812.) The court noted that a felony conviction will

be reversed on appeal only if the defendant suffered prejudice as a result of

the speedy trial violation. ( Ibid. ) As such, a felony defendant who pleads

guilty cannot appeal because his guilty plea precludes any showing of

prejudice. ( Ibid. ) “The impact of a Penal Code section 1382 violation on the

prosecution of a misdemeanor is, however, quite different. When a felony is

dismissed pursuant to section 1382, the prosecution may refile the same

charge. Once a misdemeanor has been dismissed pursuant to section 1382, it

cannot be f

iled again. This distinction leads to a different standard of6

appellate review of speedy trial issues for misdemeanors; a section 1382 error

requires reversal and dismissal of a misdemeanor without any showing of

prejudice [citations] ....” ( Ibid. )

Defendant relies on this dicta from Avila to support his claim that he

need not establish prejudice. But as the People point out, this dicta and the

holding of Avila have been criticized by other appellate courts. In People v.

Herna ndez (1992) 6 Cal.App.4th 1355, the defendant pleaded guilty to a

felony after his motion to dismiss based on a claimed constitutional speedy

trial violation was denied. Defendant challenged the denial of that motion on

appeal. The court disagreed with Avi la

, and held that a speedy trial violation

does not survive a guilty plea. ( Id. at pp. 1357

- 1358.) The court also

criticized Avila ’s analysis of prejudice, noting “[t]he reasoning of Avila would

permit a defendant to raise any issue on appeal after a plea of guilty, by

arguing that, had his motion been granted, he could not have been

successfully prosecuted at any time. We think the absurdity of such a

position is obvious . . . .” ( Id. at p. 1360.)

Avila faced similar criticism in People v. Egbert, supra, 59 Cal.App.4th

503. There the court disagreed with Avila and held that a claimed speedy

trial violation, statutory or constitutional, does not survive a guilty plea in

misdemeanor prosecutio ns. ( Id. at p. 506.) In so holding, the court found

that Avila “erroneously assume[d] when a felony is dismissed for violation of

section 1382, the prosecution may refile the same charge, but when a

misdemeanor is dismissed under that provision, the same charge cannot be

refiled. The court then uses this distinction to conclude a misdemeanor

defendant is automatically prejudiced by the denial of a statutory dismissal

motion. In our view, the dismissal statutes are not so clear cut. Further,

appellate review of a statutory speedy trial issue requires consideration of the7

type of prejudice arising from the delay in prosecution, not the prejudicial

effect caused by the denial of the motion itself.” ( Id. at pp. 513

- 514.)

Finally, in People v. Aguilar (1998) 61 Cal.App.4th 615, the defendant

was charged with a misdemeanor, her constitutional speedy trial motion was

denied, and she pleaded no contest. She appealed and the court held that the

denial of a speedy trial motion i s not appealable when the defendant pleads

no contest. ( Id. at p. 617.) The court also criticized Avila’s prejudice analysis,

finding it “rests upon a misperception of the concept of prejudice.” ( Id. at p.

620.)

Read together, these cases demonstrate that both parties are incorrect.

Contrary to defendant’s claim, prejudice is required on appeal from the denial

of a statutory speedy trial motion in a misdemeanor case. ( People v. Egbert,

supra, 59 Cal.App.4th at p. 512.) And contrary to the People’s claim, section

1387’s prohibition against refiling a case can establish that prejudice in

certain misdemeanor cases. ( People v. Wilson, supra, 60 Cal.2nd at p. 153, fn.

5.) All of the cases the People cite hold that a defendant may not appeal the

denial of a speedy trial motion (whether statutory or constitutional) in a

misdemeanor case following a guilty plea because the defendant’s guilty plea

eliminates any possible prejudice to the defendant caused by the delay.

( People v. Hernandez, supra, 6 Cal.App.4th at pp. 1357

- 1360 [constitutional];

People v. Aguilar, supra, 61 Cal.App.4th at pp. 621

- 622 [constitutional];

People v. Egbert, supra, 59 Cal.App.4th at p. 515 [both].)

But those cases do not stand for the proposition that se ction 1387’s

prohibition against refiling certain misdemeanor cases cannot establish

prejudice on appeal when the defendant is convicted at trial. In Wilson, in

addition to the statute of limitations example, the court stated that the

erroneous denial of a statutory speedy trial motion is rendered prejudicial by8

section 1387. ( People v. Wilson, supra, 60 Cal.2nd at p. 153, fn. 5.) Almost 20

years later, the court reaffirmed that concept in Johnson

. In discussing

Wilson and why the Johnson defendant must show prejudice on appeal from

a section 1382 violation, the court noted “[t]his is not a case in which the

statute of limitations would have been a bar to new charges, or one in which

a dismissal would itself have barred refiling.” ( Id. at p. 574.) In People v.

George (1983) 144 Cal.App.3d 956, after trial the defendant claimed a

violation of her speedy trial right under section 1381.5. The court affirmed,

finding no prejudice because “the denial of the motion [to dismiss] occurred

wi thin one year of the robbery’s commission, well within the applicable

statute of limitations [citation], and hence dismissal would have been no bar

to refiling. We note that dismissal of the information might also have been

prejudicial had there been a pri or dismissal on speedy trial grounds (§ 1387;

[citation]), but here there was no such prior dismissal.” ( People v. George,

supra, 144 Cal.App.3d at pp. 959

- 960.) The court applied the same rationale

in People v. Cory (1984) 157 Cal.App.3d 1094, 1101, where the court found

the defendant’s statutory speedy trial right had been violated. But the

defendant could not establish prejudice because “this is not a case in which

pretrial dismissal would have barred further prosecution by reason of either

section 1387 or the statute of limitations.” ( Ibid. ) And in Aguilar, in

discussing the prejudice requirement on appeal for a misdemeanor, the court

observed, “If the [speedy trial] motion is denied, and the reviewing court

deems the denial was in error, the error is inherently prejudicial because a

grant of the motion would have barred further prosecution in most

circumstances. [Citations.]” ( People v. Aguilar, supra, 61 Cal.App.4th at p.
622.)9

Here, defendant’s statutory right to a speedy trial was violated when

the trial court continued the trial over his objection and without good cause.

Defendant did not plead guilty; instead he went to trial and was convicted.

As such, he can appeal the denial of his statutory speedy trial motion. But on

appe al, defendant must show prejudice. He has established prejudice

because if the case had been dismissed under section 1382 as it should have

been, it could not have been refiled because none of the exceptions from

section 1387 apply.

DISPOSITION

The judgmen t is reversed.

Scott Van Camp Judge

WE CONCUR:

Melissa R. McCormick Presiding Judge

Robert A. Knox Judge