Filed 10/26/22 P. v. Morcos CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

HADY WAEL MORCOS,

Defendant and Appellant.

 B319289

 (Los Angeles County

 Super. Ct. No. PA094334)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Cynthia L. Ulfig and Michael Terrell, 

Judges. Affirmed. 

Law Offices of Gregory Rubel and Gregory Rubel for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Stephanie A. Miyoshi, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________________
2

In March 2020, the People filed a complaint alleging that 

defendant and appellant Hady Wael Morcos committed a 

burglary. Morcos was incarcerated in state prison at the time the 

complaint was filed. On July 13, 2020, Morcos submitted a 

written request to be brought to trial on the burglary charge 

within 90 days, pursuant to Penal Code1 section 1381. Although 

the People filed two requests in July and September 2020 to have 

Morcos transported to the courthouse, Morcos was not brought to 

trial within 90 days of July 13, 2020.

On June 16, 2021, Morcos moved to dismiss the charge 

because of the People’s failure to adhere to section 1381’s 90-day 

deadline. The statute explicitly provides that the trial court 

“shall” dismiss the charge if the defendant is not brought to trial 

within 90 days of his or her written request. (See § 1381.) On 

July 23, 2021, the trial court denied the motion, reasoning that 

the COVID-19 pandemic prevented the People from transporting 

Morcos to the courthouse prior to the expiration of the statutory 

time limit. The court observed that courts across the state were 

closed down for most purposes in March 2020 and had minimal 

staffing at that time; during the 15–18 months prior to the 

hearing on Morcos’s motion, prison officials were not transporting 

defendants to the courthouse; and, during that timeframe, there 

were COVID breakouts within the prison and jail systems. On 

March 9, 2022, Morcos pleaded nolo contendere to one count of 

first degree residential burglary and the court sentenced him to 

two years in prison.

On appeal, Morcos argues the trial court erred in denying 

his motion to dismiss. He relies principally on the fact that 

1 Undesignated statutory citations are to the Penal Code.
3

section 1381 does not explicitly provide that the People may avoid 

dismissal by showing good cause for delay, in contrast to another 

statute that expressly includes a good cause exception to a 60-day

statutory deadline to bring a defendant to trial (i.e., § 1382, 

subd. (a)).

We conclude that under the limited circumstances of this 

case, the trial court did not err in denying Morcos’s motion. In so 

doing, we acknowledge that the literal text of section 1381 

supports Morcos’s position that the statute required the trial 

court to dismiss the burglary charge regardless of whether the 

COVID-19 pandemic prevented the People from bringing him to 

trial within the 90-day statutory deadline. Nevertheless, the 

instant appeal presents a circumstance in which the literal 

meaning of a statute must give way to the imperative of 

protecting public health in the midst of an unprecedented 

pandemic involving a deadly and contagious disease.2 Were we 

to hold otherwise, then state officials would be presented with a 

Hobson’s choice of either complying with the 90-day time limit or 

undertaking measures critical to preventing the spread of this 

deadly disease. 

As our colleagues in Division Eight noted in another case 

involving this public health crisis: “The words of Thomas 

Jefferson bear weight. ‘A strict observance of the written law is 

doubtless one of the high duties of a good citizen, but it is not the 

2 (See People v. Breceda (2022) 76 Cal.App.5th 71, 74–75, 

91 (Breceda) [characterizing the COVID-19 pandemic as “an 

unprecedented global health crisis” involving “a mysterious, 

contagious, and deadly virus,” and noting that the Chief Justice 

issued an order “stating ‘ “[c]ourts are clearly places of high risk 

during this pandemic because they” ’ are well populated”].)
4

highest. The laws of necessity, of self-preservation, of saving our 

country when in danger, are of higher obligation. To lose our 

country by a scrupulous adherence to the written law, would be 

to lose the law itself, with life, liberty, property and all those who 

are enjoying them with us; thus absurdly sacrificing the ends to 

the means.’ [Citation.]”3

In accordance with Jefferson’s observations, we conclude 

that an aid to statutory construction called the impossibility 

doctrine supports the trial court’s ruling. Specifically, case law 

from the civil and criminal contexts establishes that a court may 

excuse a party’s failure to comply with a statutory mandate on 

the ground of impossibility if doing so reflects the proper 

understanding of the provision’s underlying legislative intent. 

We conclude that the impossibility doctrine applies to 

section 1381 because the Legislature enacted the statute to 

curtail state officials’ willful or negligent failure to safeguard a 

defendant’s speedy trial right, and not to penalize the People 

when compliance with the 90-day limit was impossible. 

This case is unique in another significant respect, to wit, 

Morcos makes no serious effort to rebut the trial court’s 

presumptively correct finding that the COVID-19 pandemic 

prevented the People from bringing him to trial within 90 days of 

submission of his written request. Instead of demonstrating that 

he could have been safely brought to trial during that timeframe, 

Morcos resorts to a statute that allows for two-way electronic 

3 (People v. Edwards (2022) 76 Cal.App.5th 523, 526–527 

(Edwards); see id. at p. 525 [noting Edwards concerned whether 

a trial court “violate[d] the confrontation clause . . . [by] 

order[ing] trial witnesses to wear masks during the current 

pandemic”].)
5

audiovideo communication for proceedings other than trials, he 

claims to have been in quarantine for only part of the 90-day 

period, and he questions the credibility of a notation in the court 

record that medical staff were unable to grant his request for 

medication that he takes on a daily basis. 

Thus, under these limited circumstances in which state 

officials were confronted with an unprecedented public health 

crisis and the appealing defendant has made no meaningful effort 

to show it was possible to bring him to trial timely and safely, we 

affirm the judgment. 

PROCEDURAL BACKGROUND4

We summarize only those aspects of the procedural history 

that are relevant to our disposition of the instant appeal.

On or about March 13, 2020, the People filed a complaint 

alleging that Morcos committed a burglary. The day after the 

complaint was filed, a judicial officer signed the People’s request 

4 Our procedural background is derived in part from 

admissions in the parties’ appellate briefing and assertions the 

Attorney General makes in his respondent’s brief that Morcos 

does not dispute in his reply. (See Williams v. Superior Court

(1964) 226 Cal.App.2d 666, 668, 674 [criminal case in which the 

Court of Appeal stated: “ ‘An express concession or assertion in a 

brief is frequently treated as an admission of a legal or factual 

point, controlling in the disposition of the case.’ ”]; Reygoza v. 

Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal 

case in which the Court of Appeal assumed that an assertion 

made by respondent was correct because the “defendant did not 

dispute respondent’s claim in his reply”]; Rudick v. State Bd. of 

Optometry (2019) 41 Cal.App.5th 77, 89–90 [concluding that the 

appellants made an implicit concession by “failing to respond in 

their reply brief to the [respondent’s] argument on th[at] point”].)
6

to have Morcos transported to the courthouse in connection with 

this case. On March 27, 2020, a prison statewide tracking sheet 

reported that Morcos was housed in a quarantine area for 

14 days, and that several of the inmates in the quarantine had 

flu-like symptoms. 

On July 13, 2020, Morcos submitted a written request to be 

brought to trial pursuant to section 1381. On July 22, 2020, the 

People filed a second request to have Morcos transported to the 

courthouse, which was signed by a judicial officer on 

July 24, 2020. Affixed to one of the court copies of this order is a 

note stating that, “ ‘for whatever reason the prisons did not 

transport.’ ” An August 31, 2020 prison statewide tracking sheet 

reported the prison system was unable to transport Morcos 

because he was placed in a COVID-19 quarantine.5 According to 

a September 2, 2020 note contained in the court file, the sheriff’s 

department reported that the state prison did not transport 

Morcos to the courthouse. 

On September 9, 2020, the People filed another request to 

have Morcos transported to the courthouse, which was signed by 

a judicial officer on September 11, 2020. A note in the court file 

dated October 7, 2020 reported that the medical staff at an 

institution identified as “ ‘SCC R&R’ ” was “ ‘unable to clear 

medication prisoner Morcos requires daily.’ ” 

On June 16, 2021, Morcos filed a motion to dismiss 

pursuant to section 1381. On July 23, 2021, the People filed an 

opposition to Morcos’s motion. 

5 This August 31, 2020 prison statewide tracking sheet 

indicated that Morcos was placed in quarantine on 

September 11, 2020. The Attorney General admits the record 

contains “no explanation as to th[is] date discrepanc[y].” 
7

The trial court heard Morcos’s motion on July 30, 2021. 

Morcos was in court and apparently no longer in custody.6 Upon 

hearing oral argument from defense counsel,7 the court denied 

the motion due to “the extraordinary circumstances of 2020 and 

COVID-19 and the global pandemic . . . .” In rendering its 

decision, the court remarked that “on March 19th of 2020, all of 

L.A. County and the State of California shut down” and “[t]he 

courts were closed except for very minimal . . . staffing”; “over the 

past 15, 18 months . . . [prison officials] have not been 

transporting people” and there were “COVID breakouts within 

the jail system” and “the state prison system”; and the People 

“made every reasonable attempt to have [Morcos] brought forth 

on these charges” but, “based on the global pandemic, he was 

unable to be brought to the courthouse.” 

After Morcos was held on to answer on the burglary charge,

the People filed an information charging Morcos with one count of 

first degree residential burglary, in violation of section 459. On 

March 9, 2022, Morcos pleaded nolo contendere to one count of 

first degree residential burglary and was sentenced to the low 

6 In his opening brief, Morcos asserts that he was “released 

from custody on or about April 7, 2021,” and that “he was 

arraigned on the Complaint” on May 10, 2021. Morcos does not 

support these assertions with any citation to the record. (See 

People v. Flint (2018) 22 Cal.App.5th 983, 1006, fn. 17 [noting

that an appellate court may “ ‘decline to consider any factual 

assertion unsupported by record citation at the point where it is 

asserted’ ”].) Nevertheless, the reporter’s transcript indicates 

that Morcos had been released from custody at some point prior 

to the July 30, 2021 hearing on his motion. 

7 The People elected not to argue at the hearing on the 

motion. 
8

term of two years in prison, pursuant to a plea agreement with 

the People. On March 14, 2022, Morcos filed a notice of appeal 

and a request for a certificate of probable cause. The trial court 

granted the request for a certificate of probable cause on March 

21, 2022. 

DISCUSSION

Section 1381 provides in pertinent part: “If a charge is filed 

against a person during the time the person is serving a sentence 

in any state prison . . . it is hereby made mandatory upon the 

district attorney of the county in which the charge is filed to bring 

it to trial within 90 days after the person shall have delivered to 

said district attorney written notice of the place of his or her 

imprisonment or commitment and his or her desire to be brought 

to trial upon the charge, unless a continuance is requested or 

consented to by the person, in open court, and the request or 

consent entered upon the minutes of the court, in which event the 

90-day period shall commence to run anew from the date to which 

the request or consent continued the trial. In the event the 

action is not brought to trial within the 90 days the court in 

which the action is pending shall, on motion or suggestion of 

the . . . defendant or . . . his or her counsel . . . dismiss the 

charge.”8 (§ 1381.)

Morcos contends section 1381 required the trial court to 

dismiss the complaint against him because the People did not 

8 Although Morcos and the Attorney General agree that 

section 1381 applies, neither side identifies Morcos’s prior 

conviction(s) or the length of the prison sentence that he was 

serving at the time the People filed the instant criminal 

complaint. 
9

bring him to trial within 90 days of the written request that he 

submitted on July 13, 2020. Morcos points out that in opposition 

to his motion, the People argued that they tried several times to 

comply with section 1381 but were unable due to COVID-19 

related reasons. Morcos asserts the People’s argument is 

unavailing because section 1381 does not contain an exception 

that allows the People to avoid dismissal on the ground of good 

cause for the delay. Morcos further argues that the state’s 

emergency orders concerning the COVID-19 pandemic do not 

excuse noncompliance with section 1381’s 90-day deadline. 

Additionally, Morcos claims that “[w]hile transportation of 

[him] . . . from the state prison to court may have been 

challenging due to COVID-19 related reasons, there was a viable 

option: . . . section 977.2(a), which” allows certain proceedings to 

be conducted by two-way electronic audiovideo communication. 

For the reasons discussed below, we conclude that section 1381 

tacitly empowered the trial court to deny Morcos’s motion on the 

basis that compliance with the statutory 90-day deadline was not 

possible.

As a preliminary matter, we observe that Morcos fails to 

controvert the factual findings supporting the trial court’s order 

denying his motion to dismiss. In his reply, Morcos asserts that 

he was not “in COVID-19 quarantine . . . for the entire 90 day 

period,” and he intimates that “the October 7, 2020 . . . note in 

the Court’s file stating that [he] could not be transported because 

he requires daily medication” lacks credibility. Yet, Morcos offers 

no response to the trial court’s findings that “on March 19th of 

2020, all of L.A. County and the State of California shut down” 

and the courts were closed for most purposes with minimal 

staffing; the state prisons were not transporting inmates to the 
10

courts “over the . . . 15[–]18 month” period preceding the hearing 

on the motion to dismiss; and, during that timeframe, there were 

“COVID breakouts within the jail system” and “the state prison 

system.” Nor does Morcos explain why these findings fall short of 

supporting the trial court’s conclusion that “he was unable to be 

brought to the courthouse” because of “the global pandemic.” 

Thus, Morcos has not discharged his burden of affirmatively 

demonstrating the court erred in finding the COVID-19 pandemic 

prevented the People from securing his physical presence within 

section 1381’s 90-day deadline.9 

To put the trial court’s factual findings in context, we 

further note that the Chief Justice of our Supreme Court issued 

an order suspending all jury trials for 60 days on March 23, 2020, 

in part because “ ‘[c]ourt proceedings require gatherings of court 

staff, litigants, attorneys, witnesses, and juries, well in excess of 

the numbers allowed for gathering under [then-]current executive 

and health orders’ ” (see Breceda, supra, 76 Cal.App.5th at 

pp. 82–83); on April 29, 2020, the Chief Justice extended that 

jury trial suspension from 60 to 90 days (see id. at p. 83); and, by 

the time section 1381’s 90-day period elapsed in the instant case 

in October 2020, the pandemic had killed over 200,000 

9 (See People v. Sanghera (2006) 139 Cal.App.4th 1567, 

1573 (Sanghera) [“Perhaps the most fundamental rule of 

appellate law is that the judgment challenged on appeal is 

presumed correct, and it is the appellant’s burden to 

affirmatively demonstrate error.”]; People v. Arter (2017) 

19 Cal.App.5th Supp. 1, 6 (Arter) [identifying “three fundamental 

principles of appellate review: (1) a judgment is presumed 

correct; (2) all intendments and presumptions are indulged in 

favor of correctness; and (3) the appellant bears the burden of 

providing an adequate record affirmatively proving error”].)
11

Americans. (See Edwards, supra, 76 Cal.App.5th at p. 526.) 

Although these facts are not essential to our disposition of this 

appeal, they further support the trial court’s finding that the 

dangers posed by the pandemic prevented the People from safely 

bringing Morcos to trial within 90 days of July 13, 2020. 

Furthermore, section 977.2, subdivision (a) does not 

support Morcos’s claim that the People could have brought him to 

trial within the 90-day period. That provision states that “in any 

case in which the defendant is charged with a misdemeanor or a 

felony and is currently incarcerated in the state prison, the 

Department of Corrections and Rehabilitation may arrange for 

all court appearances in superior court, except for the preliminary 

hearing and trial, to be conducted by two-way electronic 

audiovideo communication between the defendant and the 

courtroom in lieu of the physical presence of the defendant in the 

courtroom.” (See § 977.2, subd. (a), italics added.) 

Admittedly, section 977.2, subdivision (a) also provides: “If 

the defendant agrees, the preliminary hearing and trial may be 

held by two-way electronic audiovideo communication.” (§ 977.2, 

subd. (a).) In his opening appellate brief, Morcos excludes this 

part of section 977.2, subdivision (a) in quoting that subdivision, 

and he does not mention it in his reply; a fortiori, he did not rely 

on it or direct us to any evidence that he had agreed or requested 

to participate in the trial via two-way electronic audiovideo 

communication. Also, Morcos does not argue, let alone show, that 

the state prison at which he was housed or the courthouse for his 

trial could have accommodated any such remote trial. Given that 

the statutory text allowing Morcos to agree to trial via two-way 

electronic audiovideo communication was not added to 

section 977.2, subdivision (a) until August 6, 2020 (see 
12

Stats. 2020, ch. 29, § 13), it is not clear whether this method of 

appearance was even an option prior to the expiration of the 90-

day period. Morcos thus fails to show the People could have 

resorted to this provision to comply with section 1381. (See 

People v. Evans (2011) 200 Cal.App.4th 735, 756, fn. 12 [declining 

to address an argument that a party to a criminal appeal failed to 

support adequately].)

Consequently, Morcos has not overcome the presumption of 

correctness accorded to the trial court’s ruling that the People 

could not bring him to trial prior to the expiration of 

section 1381’s 90-day time limit. (See Sanghera, supra, 

139 Cal.App.4th at p. 1574; Arter, supra, 19 Cal.App.5th Supp. 

at p. 6.) 

Next, we assess the legal import of that undisturbed 

finding. Although we agree with Morcos that section 1381 

does not explicitly authorize the trial court to deny a motion to 

dismiss on the ground the People showed good cause for the delay 

in bringing him to trial,10 the omission of a good cause exception 

from the statute is not fatal to the court’s ruling.

The Attorney General correctly points out that “[w]here the 

purpose of a statute is to prevent avoidable delay, a court can 

adopt ‘ “a statutory construction recognizing an implicit . . . 

exception” ’ in particular circumstances.” (Quoting National 

Shooting Sports Foundation, Inc. v. State of California (2018) 

5 Cal.5th 428, 433 (National Shooting Sports Foundation, Inc.).) 

“For example, our courts have excused compliance with a statute 

of limitations where timely compliance was impossible; in such 

10 (See § 1381 [providing the trial court “shall . . . dismiss

the charge” “[i]n the event the action is not brought to trial 

within the 90 days”].)
13

instances, the excusal was based on an interpretation of the 

statute of limitations in accordance with an underlying 

legislative intent to avoid unjust application of the statute.”11 

(National Shooting Sports Foundation, Inc., at p. 433.) These 

precedents “recognize[ ] that a statute may contain an implied 

exception for noncompliance based on impossibility where such 

an exception reflects a proper understanding of the legislative 

intent behind the statute.” (See id. at p. 434.) “Impossibility” is 

“an aid to statutory interpretation” that “is akin to the absurdity 

canon, which counsels courts to ‘avoid any [statutory] 

construction that would produce absurd consequences.’ 

[Citations.]” (See ibid.) 

Although the National Shooting Sports Foundation, Inc.

court made these observations in the course of construing Civil 

Code section 3531 (see National Shooting Sports Foundation, 

Inc., supra, 5 Cal.5th at pp. 433–434, citing Civ. Code, § 3531 

[“The law never requires impossibilities.”]), California appellate 

11 Although section 1381’s 90-day deadline is analogous to 

a statute of limitations, we acknowledge that section 1381 differs 

from a statute of limitations because (as discussed subsequently 

in this part), section 1381 is intended to implement a 

constitutional provision, whereas “[a] statute of limitations serves 

to promote the public policy of furthering justice by precluding the 

assertion of stale claims.” (Hennessey’s Tavern, Inc. v. American 

Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359, italics added.) 

Notwithstanding this distinction, we conclude, for the reasons 

provided in greater detail later in this opinion, that the 

impossibility doctrine applies because section 1381 was not 

intended to impose strict liability on the People for failure to 

adhere to the 90-day deadline. Instead, it was enacted to prohibit 

delay attributable to the willful or negligent misconduct of state 

officials. 
14

courts have applied the impossibility doctrine in the criminal 

context as well. 

For instance, the Edwards court tacitly relied on the 

principles underlying the impossibility doctrine when it rejected 

a confrontation clause challenge to a trial court’s order requiring 

all persons in the courtroom, including witnesses, to wear masks 

in the course of a criminal trial held during the pandemic. (See 

Edwards, supra, 76 Cal.App.5th at pp. 525–527.) Although the 

Edwards court acknowledged that “[a] mask covering the nose 

and mouth undeniably impairs jurors’ ability to see a witness’s 

face to a degree,” the appellate court concluded that this 

infringement of the defendant’s right to confrontation was 

permissible because “it is undeniable that judges must not allow 

a jury trial to spread a deadly contagion” and “[t]he Constitution 

does not require judges to imperil public health.” (See ibid.) In 

arriving at this conclusion, the Edwards court was, in effect, 

adopting a construction of the confrontation clause that 

“ ‘avoid[ed] . . . absurd consequences.’ [Citations.]” (See National 

Shooting Sports Foundation, Inc., supra, 5 Cal.5th at p. 433.) 

The impossibility doctrine excuses the People’s failure to 

bring Morcos to trial before section 1381’s 90-day deadline 

elapsed. Section 1381 is one of several statutory provisions that 

constitute our Legislature’s “interpretation of the [state] 

constitutional provision for speedy trial . . . .” (See Barker v. 

Municipal Court of Salinas Judicial Dist. (1966) 64 Cal.2d 806, 

811–812 (Barker).) “The function of th[at underlying] 

constitutional provision is ‘to protect those accused of crime 

against possible delay, caused either by willful oppression, or the 

neglect of the state or its officers.’ [Citations.]” (See id. at p. 811, 

italics added.) Thus, it is apparent that in enacting section 1381, 
15

the Legislature did not intend to penalize the People in cases 

where compliance with the 90-day limitation would be 

impossible. Furthermore, although the constitutional speedy 

trial right’s “purpose and policy” is to “avoid[ ] the obvious 

prejudice which follows when required to defend against criminal 

charges long after commission of the alleged offenses” (see 

Barker, at p. 813), Morcos does not claim that the delay in the 

instant case resulted in any prejudice to him that may warrant 

enforcement of section 1381’s deadline.12 

Accordingly, we conclude that section 1381 “contain[s] an 

implied exception for noncompliance based on impossibility” that 

excuses the People’s inability to bring Morcos to trial within the 

90-day time limit, given that this construction and application of 

the provision “reflects a proper understanding of the legislative 

intent behind the statute.” (See National Shooting Sports 

Foundation, Inc., supra, 5 Cal.5th at p. 434.) We note that this 

conclusion is not inconsistent with our acknowledgment that, 

unlike section 1382, subdivision (a)(2), section 1381 does not, by 

its terms, include a good cause exception.13 The “good cause” 

12 During the proceedings below, Morcos suggested the 

delay in bringing him to trial prevented him from settling his 

case with the People at an earlier date so that he could have 

served his prison sentence for the instant matter concurrently 

with the sentence he was serving when he submitted his 

section 1381 request on July 13, 2020. Morcos does not reassert 

this argument on appeal. In any event, this argument is not 

persuasive because Morcos did not explain how the delay in 

bringing him to trial precluded him from engaging in plea 

negotiations with the People. 

13 (See § 1382, subd. (a)(2) [“The court, unless good cause 

to the contrary is shown, shall order the action to be dismissed in 
16

determination under section 1382 is committed to the trial court’s 

“ ‘broad discretion’ ” and calls for a flexible, “ ‘ “ ‘totality of the 

circumstances’ ” ’ ” analysis that allows the court to consider, 

inter alia, “ ‘ “the nature and strength of the justification for the 

delay . . . .” ’ ” (See Hernandez-Valenzuela v. Superior Court

(2022) 75 Cal.App.5th 1108, 1122–1124.) Conversely, as 

explained above, we construe section 1381 to include an implied 

exception for cases that satisfy a far more onerous standard, i.e., 

where compliance with the statutory time limit is impossible, and 

we conclude that Morcos has failed to rebut the trial court’s 

finding triggering that exception.14

the following cases: [¶] . . . [¶] In a felony case, when a defendant 

is not brought to trial within 60 days of the defendant’s 

arraignment on an indictment or information”]; see also Barker, 

supra, 64 Cal.2d at pp. 811–812 [indicating that section 1382 is a 

“specific provision[ ] declaratory of the constitutional right to a 

speedy trial”].)

14 We acknowledge that Lacayo v. Superior Court (2020) 

56 Cal.App.5th 396, found that a trial court had erred in 

continuing a preliminary hearing beyond the applicable statutory 

deadline (i.e., within 60 days of the arraignment) on account of 

the COVID-19 pandemic. (See id. at pp. 397–398, 400.) The 

Court of Appeal reasoned that “the 60-day rule is absolute and 

there is no good-cause exception to the rule . . . .” (See id. at 

pp. 399–400.) The Lacayo opinion does not undermine our ruling 

in the instant case, however, because the People conceded error 

in Lacayo (see id. at p. 397), meaning the appellate court had no 

occasion to consider the potential applicability of the 

impossibility doctrine. (See Kim v. Reins International 

California, Inc. (2020) 9 Cal.5th 73, 85, fn. 4 [“ ‘[C]ases are not 

authority for propositions that are not considered.’ ”].) 
17

People v. Tucker (2011) 196 Cal.App.4th 1313, provides 

further support for our conclusion that the impossibility doctrine 

applies to this case. There, the Court of Appeal upheld a trial 

court’s decision to continue a trial because the “incarcerated 

criminal defendant [was] under quarantine to prevent the spread 

of infectious disease” that had led to the hospitalization of nearly 

250,000 Americans and killed more than 11,000 of them, to wit, 

“the H1N1 flu virus.” (See id. at pp. 1314–1316.) Although 

Tucker concerned a trial court’s exercise of its discretion to find 

good cause for a continuance under section 1382, 

subdivision (a)(2) (see Tucker, at pp. 1316–1318), the decision is 

instructive here because it recognizes that “[p]ublic health 

concerns trump the right to a speedy trial,” and that “[a] contrary 

holding would require trial court personnel, jurors, and witnesses 

to be exposed to debilitating and perhaps life-threatening illness.” 

(See id. at p. 1314.) Likewise, because the spread of a dangerous 

and contagious disease prevented the People from bringing 

Morcos to trial within section 1381’s 90-day timeframe, public 

health concerns must trump Morcos’s interest in strict adherence 

to the statutory deadline. 

In sum, we conclude that under the limited circumstances 

of this case, section 1381 impliedly authorized the trial court to 

deny Morcos’s motion to dismiss on the ground that the People 

were unable to bring him to trial within 90 days of his 

July 13, 2020 written request.15

15 We affirm the order denying Morcos’s motion to dismiss 

even though the trial court did not explicitly mention the 

impossibility doctrine in its ruling. (See People v. Stuckey (2009) 

175 Cal.App.4th 898, 913 [“ ‘If the decision of a lower court is 

correct on any theory of law applicable to the case, the judgment 
18

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

or order will be affirmed regardless of the correctness of the 

grounds upon which the lower court reached its conclusion.’ ”].)