48 Cal. 4th 533, 227 P.3d 437, 106 Cal. Rptr. 3d 883

Filed 4/5/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S166402
v.
Ct.App. 2/3 B195337
MICHAEL JEROME SUTTON et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA304502

Penal Code section 1382 ? one of the principal provisions implementing
California?s statutory right to a speedy trial ? provides that when a defendant
charged with a felony is not brought to trial within 60 days of arraignment on an
indictment or information (and the defendant has not expressly or impliedly
consented to having trial set for a date beyond that period), the criminal charges
against the defendant shall be dismissed unless there is ?good cause? for the delay.
In the present case, on the 60th day after arraignment, the appointed
counsel of one of two jointly charged defendants was engaged in another trial that
had extended longer than anticipated but that was expected to be completed very
shortly. For that reason, the trial court found there was good cause to delay the
trial of both defendants (without their consent) on a day-to-day basis until the
attorney?s other trial was completed. Ultimately, the trial in the present
1


proceeding commenced on the 66th day after arraignment. At that trial, both
defendants were convicted of all charged offenses.
In the Court of Appeal, defendants principally contended that the trial court
erred in finding that appointed counsel?s engagement in another trial constituted
good cause to delay the trial in this case beyond the 60th day without the consent
of defendants, maintaining that the trial court?s finding of good cause conflicted
with this court?s decision in People v. Johnson (1980) 26 Cal.3d 557 (Johnson)
and subsequent cases that applied the holding in Johnson. The Court of Appeal
rejected defendants? contention, concluding that the circumstances of this case
were distinguishable from Johnson. We granted review to consider the validity of
the conclusion reached by the Court of Appeal.
In this court, defendants vigorously assert that the Court of Appeal?s
decision is inconsistent with this court?s holding in Johnson, supra, 26 Cal.3d 557.
The Attorney General disputes this assertion, and further requests that we
reconsider the holding in Johnson itself.
As we explain, although there is language in the opinion in Johnson, supra,
26 Cal.3d 557, that supports defendants? position, a careful reading of the entire
decision demonstrates that the language in Johnson relied upon by defendants is
overbroad and should be clarified. The circumstances presented in Johnson ? in
which a lengthy delay in bringing a criminal case to trial was attributable to the
state?s chronic failure to provide a number of public defenders sufficient to enable
indigent defendants to proceed to trial within the presumptive statutory period ?
are clearly distinguishable from those in the present case. Here, trial was delayed
on a day-to-day basis for a brief period of time in order to permit one
codefendant?s appointed counsel to complete an ongoing trial in another case that
ran longer than had been anticipated, a delay that ?unlike the delay in Johnson ?
cannot fairly or reasonably be attributed to the fault or neglect of the state. We
2


conclude that Johnson should not be understood to preclude a trial court from
finding good cause to delay trial under the circumstances presented by the case
before us and accordingly affirm the judgment of the Court of Appeal upholding
the trial court?s action.
I
A
The facts giving rise to the criminal charges against defendants Willie J.
Jackson and Michael Jerome Sutton (set forth verbatim from the Court of Appeal?s
opinion) are as follows:
On May 31, 2006, Officer Anthony Jackson [(Officer Jackson)], a member
of the [Los Angeles Police Department?s] narcotics division buy team, was
working undercover at 7th and Ceres in Los Angeles. Defendant Jackson was
counting money on Ceres. The officer looked at defendant Jackson, who
approached the officer and asked what he wanted. The officer said he wanted ?a
20,? meaning $20 worth of [drugs]. Defendant Jackson said he had to get it; he
crossed the street to a waist-high camping tent, where [defendant] Sutton was
waiting.
Sutton and defendant Jackson talked, although the officer could not
overhear their conversation. Sutton opened a white bottle out of which he poured
an off-white solid substance into his hand and gave it to defendant Jackson.
Defendant Jackson walked back to the officer and asked him for the money. The
officer gave defendant Jackson a prerecorded $20 bill, and defendant Jackson gave
the officer an off-white solid substance resembling rock cocaine. As the officer
walked away, he signaled to his partners that the buy was complete.
Jackson was arrested. Officers recovered $14 from his pants pockets.
Sutton was arrested. Officers recovered an off-white substance resembling rock
cocaine, a white canister also containing an off-white substance resembling
3


cocaine, and $44 from him. Detective Vip Kanchanamongkol, who was in charge
of the operation, compared a $20 bill recovered from Sutton to the prerecorded bill
Officer Jackson used to buy the drugs from defendant Jackson. The bills matched.
Testing confirmed that the substance Officer Jackson bought was 0.33 grams of
cocaine base and that the substance recovered from Sutton was 0.99 grams of
cocaine base. [End of quoted passage from Court of Appeal opinion.]
B
As just noted, defendants were arrested on May 31, 2006 ? immediately
following the drug transaction ? and a felony complaint was originally filed
against both of them on June 2, 2006, charging Jackson and Sutton with sale of a
controlled substance (Health & Saf. Code, ? 11382) and charging Sutton
additionally with possession of cocaine base for sale (Health & Saf. Code,
? 11351.5).
Under Penal Code section 859b, in the absence of a waiver or unless good
cause exists, a preliminary hearing must be held within 10 court days of the date
on which a defendant is arraigned on a complaint. On June 16, 2006 ? which the
trial court described as day ?10 of 10? ? neither defendant was present in the
court in which the preliminary hearing was set, apparently because the defendants,
both of whom were in custody, had been brought to the wrong courthouse. At that
time, the trial court dismissed the complaint (as required by ? 859b), and Sutton
was released from custody. Jackson remained in custody on a probation
revocation. The trial court stated that it assumed the People would refile the
complaint.
The People refiled the felony complaint three days later on June 19, 2006,
and Sutton was again arrested and placed in custody. (Thereafter both defendants
remained in custody throughout the pretrial proceedings.) After a preliminary
hearing, Sutton and Jackson were held to answer and were arraigned on an
4


information on July 21, 2006. Trial of the matter then was scheduled for Monday,
September 11, 2006, as day ?52 of 60? for purposes of Penal Code section 1382.1
(Under section 1382, in a felony case a defendant must be brought to trial within
60 days of his or her arraignment on an indictment or information, unless (1) the
defendant enters a ?general waiver? (? 1382, subd. (a)(2)(A)); (2) the defendant
?requests or consents to? a trial date beyond the 60-day period, in which case he or
she shall be brought to trial within 10 days of the date set for trial (? 1382,
subd. (a)(2)(B)); or (3) ?good cause? for setting a trial date beyond that period is
shown (? 1382, subd. (a)).)
The trial date later was changed to Tuesday, September 12, 2006 ? day
?53 of 60? ? and on September 12 all parties and counsel2 appeared in
Department 111 and announced ready for trial, although Jackson?s appointed
counsel, Steven Flowers, stated that he was ?supposed to start trial today? in a case
?which I think will settle.? Flowers further stated: ?I am supposed to start another
trial tomorrow [(Wednesday, Sept. 13)] which will not settle. I am already in
[Department] 100 on Thursday, and the date for this case to go to 100 is on
Friday.?3 After noting that his client in the trial scheduled for Thursday was not in

1
All further statutory references are to the Penal Code unless otherwise
indicated.
2
The record reflects that Jackson was represented at the September 12, 2006
proceeding and in all subsequent proceedings by Steven Flowers, an appointed
bar-panel attorney, and that Sutton was represented at the September 12
proceedings and all subsequent proceedings by Thomas J. White, also an
appointed bar-panel attorney.
3
Department 100 is the criminal master calendar court of the Los Angeles
County Superior Court, from which cases are assigned ?for trial to any court
throughout the county.? (Super. Ct. L.A. County, Local Rules, rule 6.0(a) [see
ch. 6, crim. div. procedures].)
5


custody and that Flowers did not believe that client would object to a continuance,
Flowers indicated he would request a continuance in the noncustody case. The
trial court then reviewed separate plea offers that had been proffered by the
prosecution to Sutton and to Jackson but not yet accepted or rejected by either
defendant, and thereafter directed that the case be transferred to Department 100
for trial assignment on Friday, September 15, 2006, as ?day 56 of 60.? The court
stated: ?[A]ll parties are announcing ready for trial subject to the possibility that
you [counsel Flowers] could be engaged in that other case, but you?re going to
make a motion.? Flowers responded: ?Exactly.?
On Friday, September 15, 2006, day 56 of 60, the parties and counsel
appeared in Department 100. At that time, Flowers stated he was then engaged in
trial in another case.4 The court asked Flowers when that trial would be
completed, and Flowers responded: ?I would anticipate, it?s more than likely the
testimony will be done today in my other case.? The court stated: ?But you?ve got
to do jury instructions and argument, so you?re not going to finish until Monday or
Tuesday?? Flowers responded: ?Monday probably.? When both defense counsel
indicated that they wanted to bring the present case back for trial on Tuesday,
September 19 (day 60 of 60), the court informed them, ?I?m going to try to get a
time waiver [from defendants] because I don?t want . . . to go to [the] last day,?
and thereafter stated to defendant Jackson: ?Your lawyer is engaged in trial right
now, and he can only try one case at a time. But he will be available to try your
case on the 19th of September. Is it agreeable with you that you come back here
on September 19th and have your trial within two days of that date?? Jackson

4
The record does not disclose the name of the other case in which attorney
Flowers was engaged or on what date that other trial had begun.
6


responded: ?As long as no time is being waived.? The court stated, ?Oh, you
don?t want to waive time?? and Jackson responded: ?No time. I don?t want to
waive time.?
The court then stated: ?That?s fine. Then whether he?s available or not, I?ll
have you back here on Monday and you guys can sit. You?re coming back for
nothing because he?s engaged in trial. It doesn?t require a time waiver, but I?m not
the one who has to sit here. So that?s fine, we?ll bring you back on Monday, both
of you, and you can sit.? The court further observed: ?[I]t seemed like a waste to
bring them back. But if there?s no time waiver, I have to bring them back every
day.? The court directed the parties and counsel to return on Monday,
September 18, 2006, as day ?59 of 60.?
On Monday, September 18, 2006, day 59 of 60, counsel for the People and
for Sutton announced ready, but Flowers, Jackson?s counsel, stated he still was
engaged in trial. The court noted that it was ?trailing this day to day? and that the
trailing was ?on motion of Mr. Flowers, correct?? Flowers responded,
?Continuing motion that started last Friday.? The court ordered the parties and
counsel to return on Tuesday, September 19, at 8:30 a.m.
On Tuesday, September 19, 2006, day 60 of 60, Flowers informed the court
that he still was engaged in trial. The court inquired, ?When is it supposed to be
over?? Flowers responded: ?Probably tomorrow. We?re dark today.? The court
noted on the record that neither defendant was waiving time, and ordered both
defendants back to court the following morning. When Sutton asked the court
when the 60-day period started to run, the court informed Sutton that ?this is the
60th day. But if . . . the lawyer is engaged in trial, there?s good cause to put the
matter over for both defendants. Mr. Flowers is still engaged in trial. The court
finds good cause. The matter is trailed. We?ll have you back tomorrow.?
7


On Wednesday, September 20, 2006, day 61 of 60, Flowers stated he still
was engaged in trial. Nonetheless, Flowers stated that ?I?m told I should make at
least a pro forma motion to dismiss.? The following colloquy ensued:
The Court: ?On what basis??
Mr. Flowers: ?Because [d]ay 61 of 60 and ??
The Court: ?But you?re engaged in trial ??
Mr. Flowers: ?And I?m still ??
The Court: ? ? You?ve asked for the continuance. Now, how can you
make a motion to dismiss? Do you want to go to trial on this second case at the
same time as your first? I don?t care.?
Mr. Flowers: ?No.?
The Court: ?Well, how can you make a motion to dismiss if you?ve made
the motion to continue??
Mr. Flowers: ?Because I?m still engaged in trial because I?m on day eight
of a two-day trial.?
The Court: ?Well, so what??
Mr. Flowers: ?I just . . .?
The Court: ?That?s not a good faith motion to dismiss if you?re making the
motion to continue. You cannot make both.?
The prosecutor stated that ?The People have been ready, your honor, every
day.? The court acknowledged that was accurate.
The trial court then ruled: ?Matter will trail. It will remain last day. All
parties are ordered back on September 21st. The court finds good cause in that
Mr. Flowers is engaged in trial. We?ll see you guys tomorrow for trial.?
On Thursday, September 21, 2006, day 62 of 60, Flowers arrived before the
defendants were present and, stating he still was engaged in trial, asked the court
whether, ?if my jury goes out today, there is a high possibility they will, . . . am I
8


considered available or do I have to wait for the verdict?? The court responded:
?That?s up to you. Technically there is a case that says while a jury is deliberating
you?re still engaged but I don?t generally wait.? Flowers asked: ?If I call at 3:00
o?clock [and say] the jury is out[,] you will consider me available for tomorrow??
The court stated: ?Tomorrow. Yes.? When defendants Jackson and Sutton
arrived, the court addressed them: ?Mr. Flowers was here this morning. He is still
engaged in trial. Mr. White was here, your lawyer [addressing Sutton], but you
guys were on the way from Lancaster, Wayside. And Mr. White had a Norwalk
appearance. He is ready for trial and waiting for Mr. Flowers who should be done
today. So I anticipate that you will go to trial tomorrow. [?] We will see you
tomorrow. I find good cause, Mr. Flowers being engaged in trial, to trail this case
until the 22nd of September. Mr. Flowers indicates he expects to have the jury out
late this afternoon and even though he is technically engaged while the jury is
deliberating, I will send you out to trial tomorrow.? Defendant Sutton asked:
?This doesn?t make us waiving time?? The court responded: ?You haven?t waived
one second. I find good cause because one of the two counsel [is] engaged in trial,
which is good cause to trail the case.?
On Friday, September 22, 2006, counsel Flowers appeared and stated that
his other trial had not yet ended but that ?[t]he prosecution rested yesterday
afternoon. Jury instructions have already been gone through and approved. So
final argument after that. They may go out this morning; if not that, then this
afternoon.? The court asked: ?You?ll be available then for trial Monday?,? and
Flowers answered: ?Hopefully, yes.? The court asked: ?Is it your request the
matter trail till Monday the 25th?? and Flowers stated: ?Yes.? The court stated:
?Court finds good cause in that Mr. Flowers is engaged in trial and will be
available for trial on September 25. There?s no time waiver. All parties are
ordered back at 8:30 a.m. on that date.? When Sutton again asked for an
9


explanation of ?what?s the good cause,? the court responded: ?[T]he good cause is
that one of the lawyers is engaged and can?t try two cases at one time. And if one
of the lawyers is engaged on a case with two defendants, it?s good cause to put
both over.?
On Monday, September 25, 2006, Flowers informed the court that he had
completed his other trial. The case then was transferred from Department 100 to
Department 124 for trial. After the trial court in Department 124 explained to
defendants the plea offers that had been made to each, they both indicated they
wanted to go to trial. Sutton?s counsel then moved for dismissal on the ground
that Sutton had been denied a speedy trial, relying upon a number of Court of
Appeal decisions holding that the state?s interest in conducting a joint trial did not
constitute good cause to delay a codefendant?s trial simply because delay was
warranted with regard to a jointly charged defendant. The trial court denied the
motion to dismiss, and the joint trial of both defendants commenced that same
day.
At trial, each defendant was convicted of all offenses with which he was
charged.
C
In the Court of Appeal, defendants contended, among other issues, that the
trial court erred under Johnson, supra, 26 Cal.3d 557, in finding that the
unavailability of Jackson?s counsel constituted good cause to delay Jackson?s trial
when Jackson expressly had refused to waive time and his counsel?s unavailability
related to counsel?s representation of another client and was not for the benefit of
Jackson. In addition, Sutton contended that even if the trial court properly found
that the engagement of Jackson?s counsel in another trial constituted good cause to
10



delay Jackson?s trial, the circumstance that Sutton was jointly charged with
Jackson did not constitute good cause to delay Sutton?s trial.
The Court of Appeal rejected both arguments. With respect to the first
contention, the appellate court held that the circumstances presented in this
case ? ?in which trial counsel is presently engaged in another matter and the
matter before the court trails for a minimal number of days? ? were
distinguishable from the circumstances presented in Johnson, supra, 26 Cal.3d
557, in which the trial court, over the defendant?s objection, had granted repeated
delays not only to permit a public defender to complete an ongoing trial but also to
accommodate the public defender?s obligations with regard to numerous other
older cases to which he had been assigned. With respect to the second contention,
the Court of Appeal held that the significant state interests served by permitting
jointly charged defendants to be tried together in a single trial can constitute good
cause to delay the trial of a jointly charged codefendant, and that the trial court did
not abuse its discretion in finding that those interests justified the relatively brief
delay in the joint trial at issue in the present case. The Court of Appeal affirmed
the convictions of both defendants.
Each defendant petitioned for review, contending (among other unrelated
issues) that the Court of Appeal?s decision was inconsistent with Johnson, supra,
26 Cal.3d 557, and a number of Court of Appeal decisions following Johnson.
We granted review, limiting the issues to be reviewed to those related to the
statutory speedy-trial issue.5

5
Our order granting review stated: ?The issue to be briefed and argued is
limited to the following: Were defendants? statutory speedy trial rights violated
when defense counsel announced ready but that he might be in another trial, and
the court continued trial for six days over defendants? personal objection, and if
(footnote continued on next page)
11


II
A
As noted, section 1382 is one of the principal provisions implementing a
criminal defendant?s statutory right to a speedy trial. The statute provides that, in
a felony case, the court shall dismiss the action when a defendant is not brought to
trial within 60 days of his or her arraignment on an indictment or information,
unless (1) the defendant enters a general waiver of the 60-day trial requirement,
(2) the defendant requests or consents (expressly or impliedly) to the setting of a
trial date beyond the 60-day period (in which case the defendant shall be brought
to trial on the date set for trial or within 10 days thereafter), or (3) ?good cause? is
shown.6

(footnote continued from previous page)
so, was the error prejudicial??

As the foregoing statement of facts reveals, the phrasing of the question in
our order granting review does not precisely reflect the circumstances disclosed by
the record in this case, inasmuch as Jackson?s counsel indicated up to the 60th day
that he expected his other trial to be completed prior to the 60th day and the trial
court continued the trial on a day-to-day basis for six days rather than simply ?for
six days.? The briefs filed by the parties in this court, however, appropriately are
based on the facts as reflected in the record, and fully discuss each aspect of the
speedy-trial issue addressed in this opinion. Accordingly, we conclude there is no
need to solicit supplemental briefing pursuant to Government Code section 68081.
6
Section 1382, subdivision (a) provides in relevant part: ?The court, unless
good cause to the contrary is shown, shall order the action to be dismissed in the
following cases: . . . [?] (2) In a felony case, when a defendant is not brought to
trial within 60 days of the defendant?s arraignment on an indictment or
information . . . . However, an action shall not be dismissed under this paragraph
if either of the following circumstances exist: [?] (A) The defendant enters a
general waiver of the 60-day trial requirement. . . . [?] (B) The defendant requests
or consents to the setting of a trial date beyond the 60-day period. . . . Whenever a
case is set for trial beyond the 60-day period by request or consent, expressed or
implied, of the defendant without a general waiver, the defendant shall be brought
to trial on the date set for trial or within 10 days thereafter.?
12


As reflected in the statement of facts set forth above, in this case each
defendant repeatedly informed the trial court that he was not willing to ?waive
time,? or, in other words, to consent to having his case brought to trial beyond the
60-day period; the trial court, in permitting the matter to trail beyond that period
on a day-to-day basis, repeatedly acknowledged that defendants had not waived
time and expressly rested its continuance orders on a determination that there was
?good cause? for the delay. Our resolution of this case thus requires an analysis of
the ?good cause? concept embodied in section 1382.
Section 1382 does not define ?good cause? as that term is used in the
provision, but numerous California appellate decisions that have reviewed good-
cause determinations under this statute demonstrate that, in general, a number of
factors are relevant to a determination of good cause: (1) the nature and strength
of the justification for the delay, (2) the duration of the delay, and (3) the prejudice
to either the defendant or the prosecution that is likely to result from the delay.
(See, e.g., Stroud v. Superior Court (2000) 23 Cal.4th 952, 969-970; People v.
Szeto (1981) 29 Cal.3d 20, 29-30; Jensen v. Superior Court (2008) 160
Cal.App.4th 266, 271-275.) Past decisions further establish that in making its
good-cause determination, a trial court must consider all of the relevant
circumstances of the particular case, ?applying principles of common sense to the
totality of circumstances . . . .? (Stroud, supra, 23 Cal.4th 952, 969; see, e.g.,
Jensen v. Superior Court, supra, 160 Cal.App.4th 266, 270-275.) The cases
recognize that, as a general matter, a trial court ?has broad discretion to determine
whether good cause exists to grant a continuance of the trial? (People v. Jenkins
(2000) 22 Cal.4th 900, 1037), and that, in reviewing a trial court?s good-cause
determination, an appellate court applies an ?abuse of discretion? standard. (Ibid.;
13


see People v. Shane (2004) 115 Cal.App.4th 196, 200-203; Hollis v. Superior
Court (1985) 165 Cal.App.3d 642, 645.)7
Past California decisions have examined a wide variety of circumstances
that have been proffered or relied upon as a basis under section 1382 for finding
good cause to delay a trial, including (1) the unavailability of a witness, (2) the
unavailability of a judge, (3) the unavailability of a courtroom, (4) counsel?s need
for additional time to prepare for trial, (5) the unavailability of counsel, and (6) the
interest in trying jointly charged defendants in a single trial. (See generally 5
Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) ?? 308-316, pp. 457-471, and
cases cited; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2009)
?? 19.27-19.29, pp. 529-532, and cases cited.)
As briefly noted above, defendants? challenges to the trial court?s actions in
the present case raise two distinct questions relating to good cause: (1) whether the
trial court acted within its discretion in determining that the circumstance that
Jackson?s appointed counsel currently was engaged in an ongoing trial in another
case constituted good cause to delay Jackson?s trial pending completion of
counsel?s other trial, and (2) if so, whether the trial court acted within its discretion
in determining that this circumstance also provided good cause to delay the trial of

7
A trial court?s broad discretion in determining whether good cause has been
shown for a delay of a scheduled trial is just one of the numerous instances in
which a trial court enjoys broad discretion over the management of the cases
pending before it and in determining a fair and reasonable manner to
accommodate the various and sometimes competing interests that frequently are
present in cases involving multiple defendants. (See, e.g., ?? 1048 [authority to
direct that an action be tried out of the statutorily designated order of calendar
preference], 1094 [authority to depart from the statutorily designated order of trial
procedure], 1270 [authority to release defendant on own recognizance], 1385
[authority to dismiss a criminal action in furtherance of justice].)
14


Sutton, a jointly charged codefendant. We turn first to the trial court?s good-cause
determination as it relates to the delay of Jackson?s trial.
B
In asserting that the Court of Appeal erred in failing to find that the trial
court abused its discretion in determining that Jackson?s counsel?s continuing
engagement in an ongoing trial constituted good cause to delay Jackson?s trial,
both defendants rely principally upon this court?s decision in Johnson, supra, 26
Cal.3d 557. Because of the centrality of the Johnson decision to defendants?
claim, we begin by reviewing that decision in some detail.
1
In Johnson, supra, 26 Cal.3d 557, the defendant, represented by a deputy
public defender, was arraigned on February 2, 1977, on robbery charges and trial
originally was set for March 23, 1977. On that date, the defendant appeared in
court with counsel. Counsel explained to the court that he was presently engaged
in another trial, had two other trials already scheduled in cases that were older than
Johnson?s case, and had no available trial date until May 6, 1977. (See 26 Cal.3d
at pp. 563-564 & fn. 2.) The trial court viewed counsel?s explanation as an
implied request for a continuance beyond the 60-day period set forth in section
1382.8 Although the defendant, who was unable to make bail and thus remained

8
Under the provisions of section 1382 as they read at the time of the trial
proceedings in Johnson, the statute?s 60-day period ran from the filing of the
information or the finding of the indictment, rather than from the date of the
arraignment (as is now the case). (See Stats. 1973, ch. 847, ? 1, pp. 1513-1514.)
Although the Johnson decision does not explicitly state on which date the
information was filed, the opinion states that the case ultimately was brought to
trial on June 27, 1977, ?144 days after the information was filed against him.?
(26 Cal.3d at p. 565.) Counting back from June 27, 1977, it appears that the
information was filed on or about February 2, 1977, the same day the defendant
(footnote continued on next page)
15


incarcerated pending trial (26 Cal.3d at p. 565), refused to consent to the proposed
continuance, the trial court found good cause to continue the matter and postponed
trial until May 6, 1977.
On that date, Johnson?s counsel again requested a continuance, explaining
that he then had three other trials to complete prior to trying Johnson?s case and
did not expect to be available for that case until June 14, 1977. (See Johnson,
supra, 26 Cal.3d at p. 564 & fn. 3.) The defendant again refused to consent to a
continuance of his trial, but the trial court found good cause to continue the trial
to June 14, ? ?which it appears to the court is the earliest opportunity counsel has
to try [the] matter.? ? (Id. at p. 564, fn. 3.)
On that date, the court excused counsel until June 23, 1977, and at the same
time entered a minute order indicating that ? ?due to congested calendar? ? the
court was trailing the case to a date ? ?not later than June 27, 1977, or to such
earlier date as a trial court is available (deemed 10th day, pursuant to
stipulation).? ? (Johnson, supra, 26 Cal.3d at p. 565.)
Finally, on June 27, 1977, 144 days after the information had been filed, the
court called the case for trial and jury selection began. (Johnson, supra, 26 Cal.3d
at p. 565.)
In addressing the propriety of the trial court?s actions, the majority opinion
in Johnson first considered whether, under the circumstances of that case, defense
counsel had the right over the defendant?s objection to waive the defendant?s
statutory right to be brought to trial within 60 days. In Townsend v. Superior
Court (1975) 15 Cal.3d 774, 779-784, this court had held that defense counsel?s

(footnote continued from previous page)
was arraigned on the information. Accordingly, the 60-day period would have
ended in early April 1977.
16


general authority to control the defendant?s participation in judicial proceedings
authorized counsel to consent to a continuance of the trial beyond the 60-day
period, even over the defendant?s objection. But in Johnson, the court qualified
the holding in Townsend, stating: ?The power of appointed counsel to control
judicial strategy and to waive nonfundamental rights despite his client?s objection
(see Townsend v. Superior Court[, supra,] 15 Cal.3d 774, 781 and cases there
cited) presumes effective counsel acting for the best interest of the client. As the
court pointed out in People v. Corona (1978) 80 Cal.App.3d 684, 720,
?[e]ffectiveness . . . is not a matter of professional competence alone. It also
includes the requirement that the services of the attorney be devoted solely to the
interest of his client undiminished by conflicting considerations.? Thus when the
public defender, burdened by the conflicting rights of clients entitled to a speedy
trial, seeks to waive one client?s right, that conduct cannot be justified on the basis
of counsel?s right to control judicial proceedings. The public defender?s decision
under these circumstances is not a matter of defense strategy at all; it is an attempt
to resolve a conflict of interest by preferring one client over another. As a matter
of principle, such a decision requires the approval of the disfavored client
[citation]. We conclude that the consent of appointed counsel to a postponement
of trial beyond the statutory period, if given solely to resolve a calendar conflict
and not to promote the best interests of [the] client, cannot stand unless supported
by the express or implied consent of the client himself.? (Johnson, supra, 26
Cal.3d at pp. 566-567, fn. omitted.)
Having concluded that the delay of the trial in that case could not be upheld
on the basis of defense counsel?s consent, the court in Johnson, supra, 26 Cal.3d
557, turned to the question whether, under the circumstances of that case, the trial
court properly could find good cause existed to support the numerous
continuances of the trial beyond the 60-day period. In addressing the good-cause
17


issue, the court in Johnson recognized that ?[w]hat constitutes good cause for the
delay of a criminal trial is a matter that lies within the discretion of the trial court.?
(Id. at p. 570.) The court in Johnson then reviewed a variety of circumstances
determined by past decisions either to constitute or not constitute good cause
under section 1382, observing: ?The courts agree, for example, that delay caused
by the conduct of the defendant constitutes good cause to deny his motion to
dismiss. Delay for defendant?s benefit also constitutes good cause. Finally, delay
arising from unforeseen circumstances, such as the unexpected illness or
unavailability of counsel or witnesses constitutes good cause to avoid dismissal.
Delay attributable to the fault of the prosecution, on the other hand, does not
constitute good cause. Neither does delay caused by improper court
administration.? (26 Cal.3d at p. 570, fns. omitted.)
The court in Johnson then stated: ?Although we perceive no objection to
the principles stated in the preceding paragraph, we question those decisions
which assume that court congestion or excessive public defender caseloads
necessarily constitute good cause to deny dismissal. (See, e.g., In re Lopez
[(1952)] 39 Cal.2d 118, 120 (court congestion); People v. Weiss (1958) 50 Cal.2d
535, 559 (same); People v. Yniquez (1974) 42 Cal.App.3d Supp. 13, 19 (same);
People v. Superior Court (Lerma) [(1975)] 48 Cal.App.3d 1003, 1009-1010
(unavailability of public defender).)? (Johnson, supra, 26 Cal.3d at pp. 570-571.)
The court explained: ?A defendant?s right to a speedy trial may be denied simply
by the failure of the state to provide enough courtrooms or judges to enable
defendant to come to trial within the statutory period. The right may also be
denied by failure to provide enough public defenders or appointed counsel, so that
an indigent must choose between the right to a speedy trial and the right to
representation by competent counsel. ?[U]nreasonable delay in run-of-the-mill
criminal cases cannot be justified by simply asserting that the public resources
18


provided by the State?s criminal-justice system are limited and that each case must
await its turn.? [Citation.]? (Id. at p. 571.)
The Johnson opinion quoted from a discussion of the problem of delay
caused by court congestion, contained in the American Bar Association?s
standards for speedy trial: ? ?[D]elay arising out of the chronic congestion of the
trial docket should not be excused . . . . [?] But, while delay because of a failure
to provide sufficient resources to dispose of the usual number of cases within the
speedy trial time limits is not excused, the standard does recognize congestion as
justifying added delay when ?attributable to exceptional circumstances.?
Although it is fair to expect the state to provide the machinery needed to dispose
of the usual business of the courts promptly, it does not appear feasible to impose
the same requirements when certain unique, nonrecurring events have produced an
inordinate number of cases for court disposition.? ? (Johnson, supra, 26 Cal.3d at
p. 571, quoting ABA Project on Stds. for Crim. Justice, Stds. Relating to Speedy
Trial (Approved Draft 1968) pp. 27-28 (ABA Stds. Relating to Speedy Trial).)
The court in Johnson continued: ?The same reasoning, distinguishing
between chronic conditions and exceptional circumstances, applies to the delay
caused by the crowded calendars of public defenders. The state cannot reasonably
provide against all contingencies which create a calendar conflict for public
defenders and compel postponement of some of their cases. On the other hand,
routine assignment of heavy caseloads to understaffed offices, when such practice
foreseeably will result in the delay of trials beyond the 60-day period without
defendant?s consent, can and must be avoided. A defendant deserves not only
capable counsel, but counsel who, barring exceptional circumstances, can defend
him without infringing upon his right to a speedy trial. Thus the state cannot rely
upon the obligations which an appointed counsel owes to other clients to excuse
19


its denial of a speedy trial to the instant defendant.? (Johnson, supra, 26 Cal.3d at
p. 572.)
Turning to the facts before it, the court in Johnson stated: ?In the present
case the record does not indicate any ground for the postponements of March 23
and May 6 which would suggest good cause to deny defendant?s motion to
dismiss. When the public defender moved for a continuance on March 23, he
clearly posited his request not upon a benefit to Johnson but upon commitment to
clients other than Johnson. He revealed that his representation of other clients
created a conflict which he proposed to resolve to Johnson?s detriment. Under
these circumstances we think the court should inquire whether the assigned deputy
could be replaced by another deputy or appointed counsel who would be able to
bring the case to trial within the statutory period. In some instances, appointment
of new counsel will serve to protect defendant?s right to a speedy trial. If, on the
other hand, the court cannot ascertain a feasible method to protect defendant?s
right, the court will have no alternative but to grant a continuance; upon a
subsequent motion to dismiss, however, the court must inquire into whether the
delay is attributable to the fault or neglect of the state; if the court so finds, the
court must dismiss.? (Johnson, supra, 26 Cal.3d at pp. 572-573.)
Because the circumstances revealed by the record in Johnson did not
demonstrate good cause for delay, the court concluded that the trial court had erred
under section 1382 in failing to dismiss the proceeding. (Johnson, supra, 26
Cal.3d at pp. 573-574.) Nonetheless, the court in Johnson went on to hold that the
defendant in that case was not entitled to relief, explaining that (1) because the
defendant had raised the issue on appeal from a subsequent conviction (rather than
pretrial), he was required to demonstrate prejudice (see People v. Wilson (1963) 60
Cal.2d 139, 151-152), and (2) the defendant had failed to demonstrate prejudice,
20


because the charges against him could have been refiled had the trial court granted
the motion to dismiss. (Johnson, at pp. 574-575.)
2
In contending that the Court of Appeal in the present case erred in finding
that the trial court?s determination of good cause was consistent with this court?s
decision in Johnson, supra, 26 Cal.3d 557, both defendants rely in part on an
introductory passage contained in the opinion, in which the court purported to
?summarize briefly? its conclusions regarding the speedy-trial issue. (Id. at
p. 561.) In summarizing the court?s holding on the issue of good cause, this
passage states: ?[W]e conclude that, at least in the case of an incarcerated
defendant, the asserted inability of the public defender to try such a defendant?s
case within the statutory period because of conflicting obligations to other clients
does not constitute good cause to avoid dismissal of the charges.? (Id. at p. 562.)
Because in the present case the inability of Jackson?s counsel to try Jackson?s case
within the 60-day period was based upon Jackson?s counsel?s obligation to another
client (whose trial the attorney was then engaged in), defendants maintain that,
under Johnson, counsel?s engagement in that other trial could not constitute good
cause to delay Jackson?s trial, even for the limited period involved in the present
case.
Although this introductory passage from Johnson, supra, 26 Cal.3d 557,
relied upon by defendants ? viewed in isolation ? reasonably can be read as
supporting defendants? claim, when we consider the opinion in Johnson in its
entirety it is evident that the language in that passage is imprecise and overstates
the decision?s actual holding on the good-cause issue. As the foregoing review of
the opinion in Johnson reveals, the focus of the court?s concern in Johnson with
respect to the good-cause issue involved the impropriety of justifying a delay in
trial upon appointed counsel?s inability or unavailability to try the case when it is
21


the state that realistically bears responsibility for counsel?s unavailability because
of its chronic failure to provide a number of public defenders or appointed counsel
sufficient to enable indigent defendants to come to trial within the prescribed
statutory period. (See 26 Cal.3d at p. 571 [?A defendant?s right to a speedy trial
may be denied simply by the failure of the state to provide enough courtrooms or
judges to enable defendant to come to trial within the statutory period. The right
may also be denied by failure to provide enough public defenders or appointed
counsel, so that an indigent must choose between the right to a speedy trial and the
right to representation by competent counsel.?]; id. at p. 573 [in considering a
motion to dismiss after the court has granted a continuance beyond the statutory
period because of counsel?s unavailability due to his or her commitment to other
clients, ?the court must inquire into whether the delay is attributable to the fault or
neglect of the state; if the court so finds, the court must dismiss? (italics added)];
see also Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th
960, 981 [describing good-cause holding in Johnson].)
As demonstrated by the circumstances of the present case, there are some
(indeed, undoubtedly many) instances in which an appointed counsel?s
unavailability to try one client?s case on a particular date because of a calendar
conflict arising from counsel?s obligations to another client cannot fairly be
attributed to the fault or neglect of the state. Here, Jackson?s counsel was
unavailable on the 60th day after Jackson?s arraignment because another trial in
which counsel was engaged ran longer than anticipated. It is often difficult to
predict how long a trial will take, and unexpected events that prolong another trial
in which appointed counsel is engaged cannot fairly or reasonably be laid at the
feet of the state. This type of calendar conflict, although arising from appointed
counsel?s obligation to another client, clearly is distinguishable from the
circumstances that were before the court in Johnson, supra, 26 Cal.3d 557.
22


Defendants contend, however, that in view of the number of cases in which
Jackson?s counsel acknowledged he was involved when this matter was called for
trial on Tuesday, September 12, 2006 (day 53 of 60) (see, ante, at p. 6), it was
reasonably foreseeable that counsel might be engaged in another trial on the 60th
day, and that the state should bear responsibility for failing to take some
ameliorative action at that point. Although the record in this case does indicate
that Jackson?s counsel had a full caseload during the time period in question, in a
contemporary urban criminal court system in which a substantial proportion of
criminal charges are disposed of without a trial, by plea negotiations that often
occur close in time to a scheduled trial date, the commitments of Jackson?s
counsel do not amount to a systemic flaw, like the one involved in Johnson, that is
fundamentally incompatible with the 60-day rule.
As the record indicates, on Friday, September 15, 2006 (day 56 of 60),
Jackson?s counsel informed the court that although he was then engaged in another
trial, he expected the other trial probably would be completed on Monday,
September 18 (day 59 of 60). Thus, at that time, the trial court reasonably could
anticipate that Jackson?s counsel would be available for trial of the current matter
within the 60-day period. On Monday, September 18, it still appeared that
counsel?s other trial might well be completed in time to commence trial in the
present proceeding within the 60-day period. It was not until Tuesday,
September 19 (day 60 of 60), that it became clear that counsel would be engaged
in the other trial beyond the 60-day period because that trial was continuing to take
longer to complete than anticipated. (The following day, Jackson?s counsel stated
that he was on ?day eight of a two-day trial.?) From September 19 forward, the
trial court continued to trail this matter on a day-to-day basis to minimize the delay
in the start of the trial in the present case. The other trial in which Jackson?s
counsel was engaged concluded by the end of that week, and trial in the present
23


case commenced the following Monday, the 66th day after defendants?
arraignment. Under these circumstances, we conclude that the delay in the
commencement of defendants? trial cannot reasonably be attributed to the fault or
neglect of the state.
Indeed, as the record of the trial proceedings in this case clearly indicates,
the general policies and practices followed by the Los Angeles Superior Court in
this case relating to the commencement of trial differed markedly from the general
trial court policies and practices that led to this court?s decision in Johnson, supra,
26 Cal.3d 557. As we have seen, in Johnson the trial court followed a practice of
routinely finding good cause to continue a trial date beyond the 60-day period,
over a defendant?s objection, solely to accommodate the public defender?s chronic
heavy backload of cases. No effort was made to establish a schedule that would
facilitate meeting the 60-day deadline; instead, early in the process, the trial court
set a trial date beyond the 60-day period because counsel was assigned to a
number of older cases, and thereafter the court granted another lengthy
continuance to further accommodate counsel?s increasing backload of other cases.
By contrast, the policies and practices followed by the trial court in the
present case clearly were designed to respect and implement the 60-day rule. In
setting an initial trial date, the court assigned a date that afforded the court and
counsel an opportunity to coordinate schedules so as to meet the 60-day deadline.
As the 60-day deadline approached, the criminal master calendar judge met with
counsel and the parties daily, in an effort to ensure that the trial would not be
unduly delayed. When on the 60th day Jackson?s counsel informed the court that,
contrary to counsel?s prior expectation, he still was engaged in his other trial, the
court trailed this case on a day-to-day basis, to ensure that the delay would be as
minimal as possible. Finally, as soon as counsel?s other trial was completed, the
trial of the present matter commenced. Unlike the situation in Johnson, the cause
24


of the instant delay ? an unanticipated extended duration of another trial in which
a defendant?s appointed counsel was engaged ? was the type of contingency that
may occur even in a reasonably funded and efficiently administered trial court
system that handles a large volume of criminal cases. The state cannot fairly or
reasonably be held responsible for all such contingencies that may occur.
Defendants contend, however, that under Johnson, supra, 26 Cal.3d 557,
the unavailability of counsel resulting from an appointed counsel?s commitment to
another client can justify a finding of good cause only in ?exceptional
circumstances,? and that the unavailability of Jackson?s counsel because of his
continued engagement in another trial cannot be viewed as ?exceptional.? This
argument is based upon a misreading of the pertinent passage in Johnson referring
to ?exceptional circumstances.? Although the court in Johnson explained that it
was appropriate to distinguish between ?chronic conditions? and ?exceptional
circumstances? in determining whether the delay caused by the ?crowded
calendars of public defenders? would support a finding of good cause (id. at
p. 572) ? thus recognizing that unusual circumstances such as a large-scale riot or
other mass public disorder might result in an inordinate number of cases that
would overwhelm even a reasonably staffed public defender?s office and justify a
reasonable delay in trial to deal with the exceptional volume of cases9 ? the

9
As discussed above (ante, at p. 19), the distinction drawn by the court in
Johnson between delay caused by ?chronic conditions? and delay attributable to
?exceptional circumstances? was based on a similar distinction drawn in the
American Bar Association?s report on standards for speedy trial in discussing trial
delay caused by court congestion. (ABA Stds. Relating to Speedy Trial, supra,
pp. 27-28, quoted in Johnson, supra, 26 Cal.3d at p. 571.) In providing examples
of the type of ?unique, nonrecurring events? that would constitute ?exceptional
circumstances,? the American Bar Association?s report stated: ?Thus, when a
large-scale riot or other mass public disorder has occurred, some leeway for
additional time is required to ensure that the many resulting cases may receive
(footnote continued on next page)
25


passage in Johnson in question did not purport to exclude other circumstances,
such as the ?unexpected illness or unavailability of counsel? (id. at p. 570), for
which the state properly could not be held responsible and that would support a
finding of good cause under section 1382. The reference in Johnson to
?exceptional circumstances? simply acknowledges that even when a delay is
attributable to the state?s failure to provide sufficient resources to bring all cases to
trial within the statutory period, there can be instances in which a trial court
properly may find good cause for the delay under section 1382. Where, as here,
the unavailability of counsel was not fairly attributable to the state?s fault or
neglect, the circumstance that the unavailability of Jackson?s counsel was not
caused by an ?exceptional circumstance? did not preclude the trial court from
determining that counsel?s unavailability constituted good cause under section
1382 to delay the trial.
Defendants further contend the trial court?s determination of good cause
was flawed because the court, in making that determination, failed to follow the
procedural steps set out in Johnson, supra, 26 Cal.3d 557. As discussed above,
the court in Johnson indicated that when appointed counsel seeks a continuance
beyond the 60-day period because of a commitment to another client, ?the court
should inquire whether the assigned [counsel] could be replaced by another . . .
appointed counsel who would be able to bring the case to trial within the statutory
period. . . . If . . . the court cannot ascertain a feasible method to protect
defendant?s right, the court will have no alternative but to grant a continuance;

(footnote continued from previous page)
adequate attention from the prosecutor?s office, defense counsel (possibly a single
defender office), and the judiciary.? (ABA Stds. Relating to Speedy Trial, supra,
at p. 28.)
26


upon a subsequent motion to dismiss, however, the court must inquire into
whether the delay is attributable to the fault or neglect of the state; if the court so
finds, the court must dismiss.? (Id. at pp. 572-573.) Defendants fault the trial
court in this case for failing to inquire on Friday, September 15, 2006 (day 56 of
60) whether Jackson?s counsel could be replaced by another counsel who could
bring the case to trial within the 60-day period, and further for failing, on
Wednesday, September 20 (day 61 of 60), when Jackson?s counsel made his ?pro
forma motion to dismiss,? to require the prosecution to establish that the delay was
not attributable to the fault or neglect of the state.
We find no merit in defendants? procedural objections. On Friday,
September 15, Jackson?s counsel told the court that his other trial probably would
be completed on Monday, September 18 (day 59 of 60); thus there was no reason
for the court to inquire at that time whether replacement counsel should be
considered. As we have seen, it was not until Tuesday, September 19 (day 60 of
60) that counsel informed the court that, contrary to counsel?s previous
expectation, he still was engaged in the other trial. Because Jackson?s counsel
indicated that he expected the trial to be completed very shortly, and continued to
express a similar expectation on succeeding days, the trial court was not required
to make any specific inquiry in order to conclude reasonably that the appointment
of new counsel for Jackson only would lengthen, rather than shorten, the delay in
bringing Jackson?s case to trial. Finally, on September 21, when Jackson?s
counsel proffered his ?pro forma motion to dismiss,? the trial court was already
fully aware from statements on the record that the delay was attributable to the
unexpected length of the other trial in which Jackson?s counsel continued to be
engaged, and there was no need to request the prosecution to present evidence
regarding whether the delay was attributable to the fault or neglect of the state.
The prosecution had announced its readiness for trial at all relevant times, and it
27


was evident that the delay at issue was not attributable to the fault or neglect of the
state. Contrary to defendants? contention, our decision in Johnson, supra, 26
Cal.3d 557, cannot properly be interpreted to require a trial court, on its own
initiative, to conduct an evidentiary hearing or inquiry under such circumstances
before finding good cause for the delay.10
For all of the foregoing reasons, we reject defendants? contention that under
Johnson, supra, 26 Cal.3d 557, the continued engagement of Jackson?s counsel in
another client?s trial could not constitute a legitimate justification for continuing
Jackson?s trial beyond the 60-day period so as to support a determination of good
cause under section 1382.11

10
Although the trial court properly denied the motion for dismissal made by
Jackson?s counsel on September 20, we disagree with the trial court?s comment
that the motion was ?not a good faith motion.? The motion was an appropriate
means of preserving Jackson?s rights by timely raising the question of the
propriety of granting a continuance of the trial without Jackson?s consent based
upon his counsel?s engagement in another client?s trial.
11
In addition to their reliance upon Johnson, supra, 26 Cal.3d 557,
defendants contend that the trial court?s good-cause determination conflicts with
the Court of Appeal?s decision in People v. Escarcega (1986) 186 Cal.App.3d 379
(Escarcega).

In Escarcega, supra, 186 Cal.App.3d 379, the defendant, who had been in
custody since April 5, 1983, awaiting trial, had agreed to a continuance of trial
until October 31, 1983, at the request of his appointed counsel (Attorney Part), but
thereafter refused to agree to any further continuance. On November 1, 1983, Part
informed the court that he was not ready for trial in Escarcega?s case because he
was in the fifth day of trial in another case (the Lawrence case) and stated that he
would be ready to try Escarcega?s case by November 15 ?at the latest.? The trial
court, observing that, if it relieved Part, new counsel would need about two
months to prepare for trial, found good cause to continue the trial to November 14.
On November 14, Part informed the court he still was engaged in the Lawrence
trial but would be finished with that trial by November 28. The trial court found
good cause to continue the Escarcega trial to November 28. On November 28,
Part appeared and announced he was ready for trial, but at that time the defendant
asked to substitute privately retained counsel. The trial court permitted the
(footnote continued on next page)
28


As explained above, a good-cause determination under section 1382
involves an assessment of a number of factors: (1) the legitimacy and strength of
the justification for the delay, (2) the duration of the delay, and (3) the likelihood
or probability that the delay will prejudice or adversely affect any party. Having
found that the engagement of Jackson?s counsel in another trial constituted a
legitimate ground to delay Jackson?s trial, we conclude that in light of the very
brief duration of the delay in the commencement of the trial and the absence of

(footnote continued from previous page)
substitution of new counsel, and the defendant in Escarcega ultimately was
convicted at the subsequent trial. On appeal, defendant challenged the trial court?s
determination that there was good cause to delay the trial in Escarcega on the
basis of attorney Part?s engagement in another trial.

The Court of Appeal in Escarcega, supra, 186 Cal.App.3d 379, agreed with
the defendant?s claim, holding that ?there was no justification for the delay from
November 10 to November 28, 1983, about two and one-half weeks. The sole
reason for such delay was the congested calendar of Part, defendant?s appointed
counsel. In the absence of ?extraordinary circumstances? such explanation for
delay cannot constitute a sufficient excuse.? (Id. at p. 386.)

The particular circumstances of Escarcega, supra, 186 Cal.App.3d 379,
may provide some basis for questioning the trial court?s good-cause determination
in that case, inasmuch as (1) the defendant had been incarcerated prior to trial for
almost six months, (2) his appointed counsel apparently began a lengthy trial for
another client shortly before the scheduled October 31 trial date without
consulting the defendant to determine whether the defendant would consent to an
additional continuance, and (3) the trial court did not inquire whether defense
counsel could either transfer the Lawrence trial to another attorney or alternatively
prepare another attorney to try the Escarcega case within the 10-day period
following the date to which the defendant had consented. (Cf. Batey v. Superior
Court
(1977) 71 Cal.App.3d 952, 957-958.) Nonetheless, to the extent that the
Court of Appeal?s decision in People v. Escarcega, supra, 186 Cal.App.3d 379,
suggests appointed counsel?s engagement in another trial never can constitute
good cause under section 1382, that decision is disapproved. As explained above,
when an appointed counsel?s unavailability is not fairly attributable to the fault or
neglect of the state, his or her continuing engagement in another client?s trial may
constitute good cause for a reasonable delay of trial.
29


any indication that the delay adversely affected defendants? ability to defend
themselves against the charges, the Court of Appeal properly found that the trial
court did not abuse its discretion in finding good cause existed to deny Jackson?s
motion to dismiss the proceeding under section 1382.12
C
Defendant Sutton contends that even if the continued engagement of
Jackson?s counsel in another trial constituted good cause to continue Jackson?s
trial, the trial court erred in determining that there was good cause to continue
Sutton?s trial date beyond the 60-day period, inasmuch as Sutton?s counsel was
ready and available to go to trial within the 60-day period. The Court of Appeal
rejected this argument, concluding that because the proceedings against Jackson
and Sutton properly had been joined, the state interests that would be served by

12
As noted above (ante, at p. 2), the Attorney General, in addition to
contending (as we have concluded) that the trial court?s finding of good cause is
not inconsistent with the decision in Johnson, supra, 26 Cal.3d 557, also urges this
court to reconsider our holding in that case that a public defender or appointed
counsel lacks the authority to waive a client?s statutory right to a speedy trial over
the objection of the client when the attorney?s action is not for the client?s benefit
but to fulfill a conflicting obligation to another client who also has a comparable
right to a speedy trial. In briefing this point, however, the Attorney General
acknowledges that the state?s chronic failure to provide a sufficient number of
public defenders or appointed counsel potentially poses a serious systemic
problem to the speedy-trial rights of persons facing criminal charges, and suggests
that the solution is to permit a trial court to consider all the circumstances of each
case on a case-by-case basis, in order to enable the court to identify those
instances in which the delay properly is attributable to the fault or neglect of the
state. A trial court?s undertaking of such case-by-case oversight, however, can
best be effectuated ? as demonstrated in the present case ? through a trial
court?s exercise of the discretion afforded by section 1382?s good-cause standard,
rather than by a modification of the holding in Johnson regarding the scope of an
appointed counsel?s unilateral authority to waive a client?s statutory speedy-trial
rights over the client?s objection.
30


conducting a single joint trial supported the trial court?s determination that good
cause existed to delay Sutton?s trial. For the reasons discussed below, we agree
with the conclusion reached by the Court of Appeal.
Section 1050.1 ? an initiative statute enacted in 1990 as part of
Proposition 115 ? provides in full: ?In any case in which two or more defendants
are jointly charged in the same complaint, indictment, or information, and the
court or magistrate, for good cause shown, continues the arraignment, preliminary
hearing, or trial of one or more defendants, the continuance shall, upon motion of
the prosecuting attorney, constitute good cause to continue the remaining
defendants? cases so as to maintain joinder. The court or magistrate shall not
cause jointly charged cases to be severed due to the unavailability or
unpreparedness of one or more defendants unless it appears to the court or
magistrate that it will be impossible for all defendants to be available and prepared
within a reasonable period of time.?
Thus, when, as here, two defendants are jointly charged in an information
and the trial court continues the trial as to one of the defendants for good cause,
section 1050.1 provides that the continuance of the trial as to that defendant
constitutes good cause to continue the trial ?a reasonable period of time? as to the
other defendant in order to permit the defendants to be tried jointly.
Defendant Sutton ? relying upon the language of section 1050.1 ?upon
motion of the prosecuting attorney? ? argues the statute does not apply in this
case, because the prosecutor never explicitly moved to continue Sutton?s trial. In
our view, however, the language of section 1050.1 in question was not intended,
and reasonably cannot be interpreted, to require an explicit motion by the
prosecutor seeking such a continuance as a necessary prerequisite to a trial court?s
finding of good cause to continue a codefendant?s trial in order to permit a joint
trial. The statute does not purport to preclude a trial court from finding that the
31


state interest in a joint trial constitutes good cause for a continuance in the absence
of such a motion by the prosecuting attorney, and the evident legislative intent
underlying the statute ? to facilitate joint trials and to minimize the instances in
which a severance is required ? is consistent with a trial court?s authority to make
such a good cause determination on its own. Indeed, because under section 1382
the determination whether good cause is shown to justify the delay of a trial
constitutes a judicial (rather than an executive) function, a significant
separation-of-powers question would be presented were the statute to be
interpreted to condition a trial court?s determination of good cause upon the
approval or concurrence of the prosecuting attorney. (Cf., e.g., People v. Tenorio
(1970) 3 Cal.3d 89, 94; People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
509-517.) Accordingly, the familiar jurisprudential principle that statutes should
be interpreted, if reasonably possible, to avoid constitutional questions (see, e.g.,
Miller v. Municipal Court (1943) 22 Cal.2d 818, 828) supports a reading of
section 1050.1 that does not condition the validity of a trial court?s determination
of good cause under the statute upon the prosecutor?s motion for a continuance.
Furthermore, long before the enactment of section 1050.1 in 1990,
California decisions had recognized that a trial court properly may find that the
significant state interests that are furthered by conducting a single trial of jointly
charged criminal defendants constitute good cause to continue a codefendant?s
trial beyond the presumptive statutory period designated in section 1382. More
than 40 years ago, in People v. Teale (1965) 63 Cal.2d 178, this court rejected a
contention that the trial court had violated the defendant?s statutory speedy-trial
rights under section 1382 in continuing one defendant?s trial date beyond the
statutory period in order to permit a single joint trial with a codefendant whose
trial date properly had been continued. The court in Teale concisely explained that
?[w]here a continuance is granted upon good cause to a codefendant the rights of
32


the other defendants are generally not deemed to have been prejudiced.? (Teale,
supra, 63 Cal.2d at p. 186, citing Ferenz v. Superior Court (1942) 53 Cal.App.2d
639 and People v. McFarland (1962) 209 Cal.App.2d 772; see also People v.
Clark (1965) 62 Cal.2d 870, 882-883.)13 And although past California decisions
have held that a lengthy continuance of an objecting codefendant?s trial to
facilitate a joint trial is permissible only in instances in which the state interest in
avoiding multiple trials is especially compelling ? as when the trials are likely to
be long and complex and impose considerable burdens on numerous witnesses
(see, e.g., Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 501-506
[upholding six-month continuance of a complex murder trial involving numerous
witnesses, where trial court found counsel for codefendants needed substantial
time to prepare adequately for trial]) ? when the proposed delay to permit a
single joint trial is relatively brief, the substantial state interests that are served in
every instance by proceeding in a single joint trial generally will support a finding
of good cause to continue the codefendant?s trial under section 1382, even when
there is no indication that, were the defendants? trials to be severed, the separate

13
In People v. Clark, supra, 62 Cal.2d 870, although recognizing that the
state interest in trying jointly charged defendants in a single trial may support a
finding of good cause to continue a trial beyond the period designated in section
1382, this court cautioned that it would constitute an abuse of discretion to grant
such a delay ?if it can be shown that the insistence on joint trial was not in good
faith, or that it was solely for the purpose of obtaining an otherwise illegal delay,
to take unfair advantage of the defendants, or was not reasonably predicated upon
the purpose and intent of the statute which grants the right to try the defendants
jointly.? (62 Cal.2d at p. 883.) In the present case, there is no suggestion that any
such improper motivation underlay the decision to jointly charge Sutton and
Jackson or to seek a single trial.
33


trials would be unusually long or complex. (See, e.g., People v. McFarland,
supra, 209 Cal.App.2d 772, 776-778; see also ? 1050.1.)14
In contending that the state interests served by a joint trial cannot properly
support a finding of good cause to delay a codefendant?s trial for even a relatively
short period of time beyond the presumptive statutory deadline, defendants rely
upon the Court of Appeal?s decision in Sanchez v. Superior Court (1982) 131
Cal.App.3d 884 (Sanchez), but that case is clearly distinguishable from the present
case. In Sanchez, one of the jointly charged defendants was in custody pending
trial and another codefendant was at liberty on bail. On the date initially set for
trial, the public defender who represented the noncustody codefendant advised the
court that he (the attorney) was then engaged in another trial, that he had two other
?must-go? criminal trials immediately after, and that he would not be available to
try the Sanchez matter until seven days beyond the 60-day period. Counsel then
moved for a continuance to that date beyond the 60-day period, and his client, free
on bail, consented to that continuance. (Id. at p. 887.) The trial court continued

14
In People v. Soper (2009) 45 Cal.4th 759, 772, we recently listed a number
of the advantages achieved by a joint trial, explaining that such a trial ? ?ordinarily
avoids the increased expenditure of funds and judicial resources which may result
if the charges were to be tried in two or more separate trials.? [Citation.] ?A
unitary trial requires a single courtroom, judge, and court attach[?s]. Only one
group of jurors need serve, and the expenditure of time for jury voir dire and trial
is greatly reduced over that required were the cases separately tried. In addition,
the public is served by the reduced delay on disposition of criminal charges both in
trial and through the appellate process.? [Citations.]? Although Soper involved a
joint trial of multiple charges against a single defendant, the advantages referred to
in that case accrue as well in the case of a joint trial of multiple defendants.

Further, in addition to the advantages set forth in Soper, a joint trial of
multiple defendants charged with the same or related offenses avoids the often
significant increased burden on crime victims and witnesses that would be
imposed by multiple trials.
34


the trial to the requested date. The incarcerated codefendant, however, objected to
a continuance of his trial beyond the statutory period, contending that this court?s
decision in Johnson, supra, 26 Cal.3d 557 stood for the proposition that ?an in-
custody defendant?s trial may not be so delayed [beyond the 60-day period] to
accommodate the overcrowded case load of appointed counsel.? (Sanchez, supra,
131 Cal.App.3d at pp. 887-888.) The trial court rejected the argument of the in-
custody defendant, ruling that Johnson was inapplicable to multiple defendants
jointly charged with the same offense.
On appeal, the Court of Appeal reversed the trial court?s decision,
concluding that ?[t]he rule stated in Johnson is equally applicable to the present
underlying prosecution where delay beyond the statutory period is caused by the
unavailability of appointed counsel for a codefendant rather than petitioner?s own
appointed counsel. The cause of the delay is the same: failure of the state to
provide the facilities and personnel needed to implement the right to speedy trial.
The result is identical: the right of an in-custody defendant demanding a speedy
trial is subordinated to the convenience of appointed counsel and the criminal
justice system as he remains confined beyond the time prescribed until the system
will accommodate him.? (Sanchez, supra, 131 Cal.App.3d at p. 890.)
Although the holding in Sanchez rested upon the appellate court?s
conclusion that good cause to continue the defendant?s trial beyond the 60-day
period was not shown in that case because the delay was directly attributable to
the state?s failure to provide a sufficient number of public defenders to implement
the statutory right to a speedy trial, the opinion in Sanchez contained broad
language that went beyond the circumstances presented in that case and suggested
that, in general, the state interests served by a joint trial cannot support a finding of
good cause to delay a trial under section 1382. (See Sanchez, supra, 131
Cal.App.3d at p. 893 [?We conclude that on balance, whatever unspecified
35


?interests of justice? might be promoted by a joint trial in the underlying
prosecution, the state interest cannot be permitted to subordinate the conflicting
right of petitioner to a trial within the 60-day period?].) A number of subsequent
Court of Appeal decisions have relied upon this language in Sanchez as supporting
the general principle that ?[t]he preference for a joint trial of jointly charged
defendants does not constitute good cause to delay one defendant?s trial beyond
the time period set forth in . . . section 1382 . . . .? (Escarcega, supra, 186
Cal.App.3d 379, 386, fn. 4; see also Arroyo v. Superior Court (2004) 119
Cal.App.4th 460, 465-466.)
As we have explained above, however, past decisions of this court make it
clear that the substantial state interests served by a joint trial properly may support
a finding of good cause to continue a codefendant?s trial beyond the presumptive
statutory period set forth in section 1382. (See People v. Teale, supra, 63 Cal.2d
178; People v. Clark, supra, 62 Cal.2d 870.) And numerous Court of Appeal
decisions properly have applied this general principle. (See, e.g., Ferenz v.
Superior Court, supra, 53 Cal.App.2d 639, 641-643; People v. McFarland, supra,
209 Cal.App.2d 772, 776-778; Hollis v. Superior Court, supra, 165 Cal.App.3d
642, 646-647; Greenberger v. Superior Court, supra, 219 Cal.App.3d 487, 496-
501; 219 Cal.App.3d at pp. 508-511 (conc. & dis. opn. of Johnson, J.).)
Furthermore, the provisions of section 1050.1 also clearly establish that the state
interest in permitting jointly charged defendants to be tried in a single trial
generally constitutes good cause to continue a defendant?s trial to enable that
defendant to be tried with a codefendant whose trial properly has been continued
36


to a date beyond the presumptive statutory deadline.15 Accordingly, the decisions
in People v. Sanchez, supra, 131 Cal.App.3d 884, People v. Escarcega, supra, 186
Cal.App.3d 379, and Arroyo v. Superior Court, supra, 119 Cal.App.4th 460, are
disapproved to the extent they hold or suggest that the state interests served by a
joint trial cannot constitute good cause under section 1382 to continue a
codefendant?s trial beyond the presumptive statutory deadline.16
In the present case, the trial court correctly found that the circumstance that
defendant Jackson?s trial properly was continued beyond the 60-day period
constituted a legitimate and appropriate justification for also delaying codefendant
Sutton?s trial beyond that period. Further, because the trial court continued
Jackson and Sutton?s trial on a day-to-day basis and the joint trial ultimately
commenced only six days after the 60-day period, the duration of the delay in this
case clearly was reasonable. Finally, Sutton makes no claim that the short delay in
the commencement of the trial adversely affected his ability to defend the charges
against him.
Under these circumstances, we conclude the Court of Appeal properly
found that the trial court did not abuse its discretion in finding good cause to delay

15
We note that the decisions in both Sanchez, supra, 131 Cal.App.3d 884,
and Escarcega, supra, 186 Cal.App.3d 379, predated the 1990 enactment of
section 1050.1.
16.
The federal Speedy Trial Act of 1974 similarly recognizes that the interest
in conducting a single joint trial of jointly charged codefendants constitutes a
legitimate and appropriate basis for extending the ordinary presumptive deadline
set forth in the statute. (See 18 U.S.C. ? 3161(h)(6) [excluding from the
presumptive speedy-trial period ?a reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom the time for trial has not run and
no motion for severance has been granted?]; see generally 5 LaFave et al., Crim.
Procedure (3d ed. 2007) ? 18.3(b), p. 144 & fn. 36.)
37


Sutton?s trial to permit him to be tried jointly with Jackson and in denying
Sutton?s motion under section 1382 to dismiss the charges against him.
III
For the reasons discussed above, the judgment of the Court of Appeal is
affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
38



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

Name of Opinion People v. Sutton
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 165 Cal.App.4th 646
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S166402
Date Filed: April 5, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Judith L. Champagne

__________________________________________________________________________________

Attorneys for Appellant:

William L. Heyman, under appointment by the Supreme Court, for Defendant and Appellant Michael
Jerome Sutton.

J. Courtney Shevelson, under appointment by the Supreme Court, and Jennifer L. Peabody, under
appointment by the Court of Appeal, for Defendant and Appellant Willie J. Jackson.

Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy Public Defender for
Public Defender of Los Angeles County as Amicus Curiae on behalf of Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.

Steve Cooley, District Attorney (Los Angeles), Irene Wakabayashi, Head Deputy District Attorney, Phyllis
C. Asayama and Shirley S. N. Sun, Deputy District Attorneys, for District Attorney of Los Angeles County
as Amicus Curiae on behalf of Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

William L. Heyman
3152 Big Sky Drive
Thousand Oaks, CA 91360
(805) 493-4112

J. Courtney Shevelson
316 Mid Valley Center
Carmel, CA 93923-8516
(831) 625-6581

David E. Madeo
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4925

Shirley S. N. Sun
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012-3213
(213) 893-0632