Monder Law Group - News
Speedy Trial Rights
Misdemeanor arraignment departments occasionally set trial dates beyond the time limits of Penal Code section 1382. Because it is the arraigning lawyers’ professional obligation to know what date is 30 and 45 days away, and to object to a trial setting beyond the applicable date unless a date farther out is chosen for the client’s benefit and with the client’s informed consent, this memo explains the workings of § 1382 in the misdemeanor arraignment context.
KNOW THE DATES! When handling an arraignment calendar, figure out the 30th and 45th days before the calendar starts, AND WRITE THEM DOWN. Counting the dates is easy. Remember that CCP § 12 says that in counting days, you don’t count the first day, but you do count the last day. So you can easily count days on a calendar. For a 30 day period, you go straight down 4 weeks (28 days) and over 2. 45 days is 6 weeks (42 days) plus 3 days. It is good practice for the arraigning attorney to prominently note the last day on the file so subsequent attorneys know what it is without having to count days again.
Examples: Arraignment, in custody, on Wednesday, May 14, 2008. Four Wednesdays later is Wednesday, 6/11/08; add 2 days for a last day of Friday, 6/13/08.
Same arraignment, out of custody: Six Wednesdays (42 days) after 5/14 is Wednesday, 6/25/08; add 3 days to make 45, and you are at Saturday, 6/14/08. Because Saturday and Sunday are “holidays” for the purposes of counting days, the last day becomes Monday, 6/16/08. (CCP § 12a.)
CUSTODY STATUS FOR § 1382 PURPOSES. Courts, clerks, and lawyers sometimes get confused over whether a defendant is in custody or out of custody when the defendant is in custody at the start of the arraignment but is released OR when arraigned. This should be a no-brainer – the defendant’s custody status is IN CUSTODY and the 30 day time period applies. (See People v. Baca (1989) 211 Cal.App.3d 675; Cal. Crim. Law, Proc. & Pract. (CEB 2007) §19.18, P 515.)
WHAT TO DO WHEN TRIAL IS SET BEYOND § 1382 TIME. Simple, just object. Don’t make a big deal or try to get the court to change the date, just say “Defendant objects to the trial date.” If asked why, say, “It’s beyond § 1382 time.” You don’t want to get into a detailed discussion or argument with the arraignment judge. In fact, you want the date to stay unchanged so you can get the case dismissed. Then you file a motion to dismiss under § 1382 to be heard as soon after time runs as possible. Make sure the minutes include your objection. Failure to object to a setting beyond time is deemed to be consent to the trial date and triggers the 10-day grace period beyond that. (§ 1382, subd. (a)(3)(B).)
If you have any questions about your speedy trial rights contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney
