Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Pollak, J.
Defendant Tery Ty Griffey appeals from a judgment convicting him of rape and assault and sentencing him to 10 years in prison. Griffey was originally convicted of these offenses in 1998. His conviction was set aside after the federal court issued a writ of habeas corpus directing the state to release defendant or retry him within 90 days. Defendant’s retrial, which resulted in the present conviction, commenced 70 days after the writ was issued. While defendant acknowledges that his retrial was timely under the federal court order, he contends nonetheless that his speedy trial rights were violated because the trial did not begin within the 60-day period required by Penal Code section 1382. In rejecting defendant’s plea for a reversal of his conviction, we need not accept the Attorney General’s contention that the federal court order superceded the state statute. Assuming that the time limit imposed by section 1382 was applicable, defendant has failed to establish that the violation was prejudicial and his conviction therefore must be affirmed.
All statutory references are to the Penal Code.
Factual and Procedural Background
On June 30, 2000, this court affirmed defendant’s 1998 conviction for rape (§ 261, subd. (a)(2)) and assault with force (§ 245, subd. (a)(1)) with a prior conviction resulting in a prison term for sexual battery (§ 243.4), and the resulting 10-year prison sentence. (People v. Griffey (June 30, 2000, A085242) [nonpub. opn.].)
On April 10, 2006, the United States Court of Appeal for the Ninth Circuit remanded the case to the United States District Court with directions to “grant a conditional writ of habeas corpus instructing the State that it may either retry Griffey within an appropriate period to be determined by the district court or release him from custody.” (Griffey v. Hubbard (9th Cir., Apr. 10, 2006, No. 04-16451) 2006 U.S. App. Lexis 9187.) On May 24, 2006, the district court issued a writ of habeas corpus directing the state to initiate retrial proceedings against Griffey by August 24, 2006, or to release him. The notice of issuance of writ of habeas corpus was filed in the Alameda County Superior Court on May 25, 2006.
At the prosecution’s request, the retrial was set for July 10. At that time, the prosecution asserted that section 1382 required defendant’s retrial to begin within 60 days of the filing of the notice on May 25. On July 10, however, the prosecutor requested a continuance, arguing that the longer 90-day period provided in the district court order authorized retrial any time prior to August 24. Over defendant’s objection, the court granted the continuance and scheduled the trial for July 31.
On July 26, defendant filed a motion to dismiss for failure to meet the 60-day deadline of section 1382. The court denied the motion. Defendant’s trial began on August 3. The jury convicted defendant as charged and the court again sentenced him to 10 years in state prison, with credit for 3650 days time served. Defendant filed a timely notice of appeal.
Because defendant does not challenge the sufficiency of the evidence or assert any error in the conduct of the trial, we see no reason for an extended summary of the evidence. In short, the victim testified that defendant, who was her boyfriend at the time, raped and assaulted her. A second witness testified to prior uncharged sexual misconduct by defendant against her.
Discussion
Section 1382 authorizes a court, unless good cause to the contrary is shown, to order a felony action dismissed “when a defendant is not brought to trial . . . after the issuance of a writ or order which, in effect, grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney . . . .” Defendant contends that he was denied his right to due process “when the court acted in excess of its jurisdiction by refusing to afford him the state-created right to be brought to trial within 60 days” under section 1382. The Attorney General contends that the longer 90-day period provided under the federal writ superseded the 60-day limit under section 1382. We need not accept this contention, however, because even if section 1382 applied and was violated, defendant has failed to show that he was prejudiced by the 10-day delay.
The Attorney General relies on People v. Black (2004) 116 Cal.App.4th 103, in which the court held that time in which a defendant must be retried or released following a successful petition for habeas relief is governed by the terms of the federal court’s order. “If the prosecution desires to try an accused during the period for retrial specified in a district court conditional habeas corpus order, there must be unquestioning obedience to the limitations set forth in the orders of the federal judiciary. This is not merely an issue of comity but a constitutional command of the Supremacy Clause in article VI, clause 2 of the United States Constitution. The Sixth Circuit has explained: ‘ “The indisposition of state authority to act when given the opportunity to do so, if deliberate or persistent, can only serve to frustrate the effectiveness of the Great Writ and would be intolerable in the administration of justice.” ’ [Citations.] Deliberate disregard of federal court orders is completely unacceptable, as is nonchalant treatment of the terms of a district court order. If the time frame in the conditional habeas corpus order is too short, the Attorney General or a local prosecutor can seek an extension of time from the district court to retry the accused. [Citations.] Otherwise, as here, once the time frame in the conditional writ has expired, the accused must be retried as if it were an ordinary retrial during the 60-day time frame specified in section 1382, subdivision (a)(2).” (Id. at pp. 112-113, fns. omitted.) People v. Black, however, does not address the present situation where the district court’s order authorized retrial beyond the limit established by section 1382.
While a defendant need not show prejudice to obtain dismissal for the violation of section 1382 when making a pretrial motion to dismiss, or seeking pretrial relief from the denial of such a motion, on appeal from a judgment of conviction he must make a showing of prejudice in order to obtain reversal of the conviction. (People v. Martinez (2000) 22 Cal.4th 750, 769; People v. Johnson (1980) 26 Cal.3d 557, 574-575.) In People v. Johnson, supra, 26 Cal.3d at page 575, the court explained that “once a defendant has been tried and convicted, the state Constitution in article VI, section 13, forbids reversal for nonprejudicial error. When a defendant has received a fair trial, we believe, neither the public interest nor the scope of article VI, section 13, call for reversal of that conviction because of nonprejudicial error in the scheduling of that trial.” In addition, the requirement of actual prejudice on appeal “represents a considered policy judgment that defendants should seek review of speedy trial claims before trial.” (People v. Johnson, supra, at pp. 574-575.) Here, defendant did not seek writ review of the denial of his motion to dismiss. On appeal, he has made no attempt to demonstrate prejudice from the delay.
Defendant contends he is not required to show prejudice here because he is challenging the court’s determination that section 1382 was inapplicable rather than a ruling on the merits under section 1382. He argues that the trial court’s refusal to apply state law was “an act in excess of its jurisdiction which prevented appellant from making any required showing of prejudice below.” The distinction that defendant appears to be drawing has no significance. The burden to establish prejudice on appeal is the same irrespective of whether the court erroneously determined that section 1382 did not apply or erred in applying its terms. Absent any showing of prejudice, defendant’s conviction must be affirmed.
In defendant’s opening brief he also contends that he was denied his federal constitutional right to a jury trial on the aggravating factors used to impose the upper term on the rape count. In his reply, defendant acknowledges that the court’s reliance on his prior conviction and prison term as a recidivism factor was sufficient to support imposition of the upper term under People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Defendant’s preservation of his federal constitutional claim is noted.
Disposition
The judgment is affirmed.
We concur:
McGuiness, P. J.
Siggins, J.