Opinion
H043990
06-30-2017
BRANDON ANDRES RUIZ-MARTINEZ, Petitioner, v. SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR02326
Petitioner Brandon Ruiz-Martinez is a defendant in a gang-related double murder prosecution pending in Santa Cruz County Superior Court. Six other defendants (the Escobar defendants) were arrested in late 2014 and held to answer on October 6, 2015, following a lengthy preliminary hearing. Petitioner, who was not apprehended and arrested until November 2015, was charged by separate indictment in April 2016. An eighth defendant, Marcos Robles, was separately indicted at the same time. The prosecutor moved under Penal Code section 1098 to join petitioner and Robles with the Escobar defendants for a single trial. Petitioner opposed that motion and asserted his right to a speedy trial. The trial court granted the prosecutor's motion, but simultaneously set petitioner for his own trial in August 2016, within the 60-day statutory period established by section 1382.
All further statutory references are to the Penal Code unless otherwise noted.
The prosecutor successfully moved under section 1050.1 to continue petitioner's trial so that he could be tried with the other defendants, whose trial was set for January 2017. Petitioner moved to dismiss the indictment pursuant to section 1382 on the ground that his right to a speedy trial had been violated. When the trial court denied that motion, petitioner petitioned this court for a writ directing the trial court to dismiss the indictment or proceed with his trial without further delay. After we summarily denied relief, the Supreme Court granted review and transferred the matter to us with directions to vacate our order and issue an order to show cause why the relief sought in the petition should not be granted. We vacated our prior order and issued an order to show cause. We now deny the petition on the merits.
I. FACTUAL AND PROCEDURAL BACKGROUND
Two people were shot and killed late on the night of October 10, 2014. Eight men have been charged with murder with special circumstances in connection with the shootings. Michael Escobar, one of two alleged shooters, was charged in October 2014. The prosecutor, Johanna Schonfield, executed complaints against seven other defendants, including petitioner, on December 16, 2014. Each complaint charged only a single defendant, but identified his seven co-defendants and the crimes committed by each. In a declaration filed in support of the return, Schonfield declares that this is how defendants are jointly charged in Santa Cruz County.
The six Escobar defendants proceeded to a six-and-a-half week long preliminary hearing and were held to answer in October 2015. Petitioner and Robles were apprehended later and charged by separate indictments on April 11, 2016. Petitioner's indictment charged him with two counts of murder (§ 187, subd. (a)); street terrorism (§ 186.22, subd. (a)); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and conspiracy to commit murder (§ 182, subd. (a)(1)). The indictment included a number of special allegations, including that the murders were carried out for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
On May 24, 2016, the prosecutor filed a motion to join petitioner and Robles with the Escobar defendants, arguing that a joint trial for all eight defendants was appropriate under section 1098. Petitioner opposed that motion, arguing that it was "inconceivable" that he would be prepared for the September 19, 2016 trial date set for the Escobar defendants, and that "subjecting him to such a swift trial would . . . subject him to a deprivation of his constitutional rights" to due process and effective assistance of counsel. On June 30, 2016, petitioner changed course and asserted his statutory right to be brought to trial within 60 days of his arraignment. (See § 1382, subd. (a)(2).) The last day for the case to be brought to trial within the 60-day period set forth in section 1382 was August 29, 2016.
On July 7, 2016, the court held a hearing on the prosecutor's motion to join and a motion to continue the trial date filed by Escobar. Escobar's motion was based on a sealed declaration of counsel, which does not appear in the record. After argument on both motions, the trial court stated: "I'm going to grant the motion to consolidate. [¶] I'm going to grant the motion to continue. [¶] I'll vacate the September trial readiness and trial dates. [¶] As to Mr. Ruiz[-M]artinez, he has a last day of August 29th. I'm going to set the matter for trial readiness on August 17th at 9:00 for a jury trial on August 22nd. [¶] I'm going to set a status conference regarding Mr. Ruiz[-M]artinez, he'll be the only defendant that I need to deal with at that time . . . ." The court made a finding of good cause to continue the trial for all of the defendants except for petitioner. The trial judge did not state on the record the facts proved that justified that finding, though he noted he had long believed "it was going to be challenging" for the parties to be prepared for trial by September, given the "significance" of the case. The court did not set a date for the joint trial at that hearing.
The parties and the court below used the terms "joinder/join" and "consolidation/consolidate" interchangeably.
Several days later, on July 12, 2016, the prosecutor moved to continue petitioner's trial pursuant to section 1050.1 so that he could be tried with the other defendants. The trial court granted that motion on July 28, 2016, stating: "Good cause has been shown to continue the September 2016 trial date. Good cause is shown to have one trial. Good cause is shown to confirm that Mr. Ruiz Martinez will be joined with the various defendants and the August 17th and August 22nd dates will be vacated. Whether one wishes to look at this as a reconsideration of the motion to consolidate, whether one considers this a continued hearing on the motion to consolidate . . . from the Court's perspective it's of no moment. Again, from a common sense pragmatic legally sustainable perspective these should all be handled in one trial." Regarding the last point, the court elaborated: "We're talking about the same locale, same events, same counts, same allegations, same witnesses, same evidence as to the videos, for example. There are allegations of coordinated effort by the defendants in this matter, allegations of conspiratorial conduct by the defendants. Taking into account all of those factors including judicial economy and the proper managing of judicial resources, all of those factors support one trial in this matter."
At the July 28 hearing, the parties addressed setting a date for the joint trial. The prosecutor stated that she had "been informed by many of defense counsel that January 30th [2017] is the earliest date that they feel like they can be effectively prepared to proceed for trial." Escobar's attorney confirmed that he could not "be reasonably prepared to try this case prior to January 30th" and stated that counsel for another defendant, Cruz, had made the same representation to him. With respect to his ability to prepare for trial, Escobar's attorney explained that "extremely voluminous" discovery regarding other alleged offenses, including several bank robberies in Santa Clara County, on which the prosecutor's gang expert intended to rely, had not yet been provided to defense counsel. Another defense attorney agreed to the January 30 date, but noted that "might prove to be too optimistic" given the "substantial discovery yet to be provided" by the People. The prosecutor noted that she had recently obtained "all of the discovery from Santa Clara" and would provide it to counsel as quickly as possible. In view of the foregoing, the court set a single trial date of January 30, 2017.
On August 26, 2016, petitioner moved to dismiss the indictment because he had not been brought to trial within the 60 days required by section 1382, in violation of his right to a speedy trial. The trial court denied that motion. Petitioner petitioned this court for a writ directing the trial court to dismiss the indictment or, alternatively, to proceed with the criminal case without further delay. This court summarily denied relief. Petitioner sought review in the Supreme Court.
On December 15, 2016, while the petition for review was pending, the trial court continued the joint trial to May 1, 2017 over petitioner's objection. The court found good cause to continue the trial based on one attorney's unavailability because of an on-going trial, which she anticipated would be completed the first week of February 2017, and Robles's attorney's need for additional time to review the extensive discovery. According to Robles's motion to continue, he has been provided with 240 gigabytes discovery, which consists of 25,307 files, including dozens of hours of video and audio files. In support of that motion, Robles's attorney declared that she had been unable to open some of the electronic discovery provided by the prosecutor and that the electronic discovery had been provided in an unorganized manner. In particular, she noted that the discovery was only partially Bates-stamped and no document listing all of the discovery provided exists. Robles requested a continuance until September 2017. The court selected the date of May 1, 2017 based on "trying to balance January 30th versus the request that it be set in September," "the [un]availability of certain attorneys in late March into mid[-]April," and the court's view that an additional four-and-a-half months would be sufficient for the attorneys to review discovery and prepare for trial.
On January 18, 2017, the Supreme Court granted review and transferred the matter to us with directions to vacate our order and issue an order to show cause why the relief sought in the petition should not be granted. This court issued the order to show cause. The people filed a return on February 27 and petitioner replied on March 15.
Thereafter, in late March, three of petitioner's co-defendants moved to continue the joint trial yet again. One of those motions, filed by defendant Escobar, asserted several grounds for a continuance, including the prosecution's "haphazard and disorganized" disclosure of discovery and the prosecution's refusal to identify which prior bad acts it will seek to admit. With respect to discovery, Escobar's motion stated that the prosecution has provided an additional 59,845 files since January 17, 2017, and that a single file can be a four hour audio recording or 1,000 pages of documents. The motion further asserted that the files are not organized in any way, the file names are nondescriptive (e.g., "09w-06389"), and the prosecutor has refused to provide any sort of discovery index.
Petitioner has requested this court to take judicial notice of (1) a motion to continue filed by Escobar dated March 27, 2017; (2) the transcript of a March 29, 2017 hearing and the related minute order; and (3) the transcript of an April 19, 2017 hearing and the related minute order. That request is granted. (Evid. Code, §§ 459, 452, subd. (d).)
At a March 29, 2017 hearing, the court stated that its tentative decision was to grant a continuance because the need for further investigation and discovery provided good cause. On April 19, 2017, the trial court continued the joint trial until September 25, 2017 over petitioner's objection and despite his counsel's representation that his attorneys are not available for trial at that time. With respect to good cause for the continuance, the court stated: "We have one attorney that was in trial from Santa Clara. We have another attorney that's beginning a trial in Santa Clara next week. There are concerns raised to the issues of discovery and the need for further investigation and discovery, specifically focusing in on this issue of other acts and what potentially will be admissible and what may not be admissible. [¶] In fact, I'll step back even from that. At this point, there's a level of uncertainty from the defense attorneys as to what other acts are even being considered by the People as potential use for evidence at trial. All of those appear, from the Court's perspective, appear to be good cause for continuance."
II. DISCUSSION
A. Governing Law
1. Speedy Trial Right and Section 1382
"The right to a speedy trial is a fundamental right . . . guaranteed by the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) . . . . To implement an accused's constitutional right to a speedy trial, the Legislature enacted section 1382." (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.)
Under section 1382, "a defendant charged with a felony is entitled to be brought to trial within 60 days of arraignment unless (1) the defendant has expressly or impliedly consented to having trial set for a date beyond that period, or (2) there is 'good cause' for the delay." (Smith v. Superior Court (2012) 54 Cal.4th 592, 595 (Smith).) "Section 1382 does not define 'good cause' as that term is used in the provision, but" our Supreme Court has observed that the following factors are relevant: "(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." (People v. Sutton (2010) 48 Cal.4th 533, 546 (Sutton).) "[I]n 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 . . . .' [Citations.] . . . [It] 'has broad discretion to determine whether good cause exists to grant a continuance of the trial' [citation] . . . ." (Id. at pp. 546-547.) The remedy for a section 1382 violation is dismissal. (§ 1382, subd. (a) ["The court, unless good cause to the contrary is shown, shall order the action to be dismissed . . . ].)
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."
"When an accused seeks pretrial relief for a violation of his statutory right to a speedy trial, he is not obliged to show that he has been prejudiced by the delay. [Citation.] If no good cause for the delay is shown, the court must dismiss the charges, regardless of its assessment of how burdensome the accused might have found the delay." (Owens v. Superior Court (1980) 28 Cal.3d 238, 252, fn. 15.)
Where the trial court denies a section 1382 motion to dismiss, the defendant's proper recourse is to petition for writ of mandate prior to the commencement of trial. (People v. Wilson (1963) 60 Cal.2d 139, 148-149.)
2. Section 1098 and the Legislative Preference for Joint Trials
Section 1098 provides: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials . . . . [W]here two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial." (§ 1098.) The final sentence, regarding separate accusatory pleadings, was added by amendment in 1955. (Stats. 1955, ch. 103, § 1, p. 568.) Prior to that time, courts had interpreted the phrase "jointly charged" to "refer to the situation where the several offenses have been joined in a single accusatory pleading" and concluded "that there could be no consolidation of accusatory pleadings charging several offenses against several defendants . . . ." (5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial § 455, citing People v. O'Connor (1927) 81 Cal.App. 506, 511 and People v. Foward (1933) 134 Cal.App. 723, 725.)
"Section 1098 establishes a clear legislative preference for joint trials where . . . multiple defendants are charged with the same crimes against the same victims." (People v. Gamache (2010) 48 Cal.4th 347, 381 (Gamache).) "A 'classic' case for joint trial is presented when defendants are charged with common crimes involving common events and victims." (People v. Keenan (1988) 46 Cal.3d 478, 499-500 (Keenan); People v. Tafoya (2007) 42 Cal.4th 147, 162 [same].)
3. Continuances of Criminal Trials
Section 1050 governs continuances of criminal trials. Subdivision (e) requires a "showing of good cause." (§ 1050, subd. (e).) Subdivision (b) sets forth procedural requirements, including "a written notice . . . filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary . . . ." (§ 1050, subd. (b).) "[A] party may make a motion for a continuance without complying with the requirements of . . . subdivision" (b). (§ 1050, subd. (c).) But, in that case, "unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5." (§ 1050, subd. (c).) Subdivision (f) requires the court to "state on the record the facts proved that justify its finding" of good cause for a continuance.
In 1990, California voters approved Proposition 115, the "Crime Victims Justice Reform Act." (Initiative Measure (Prop. 115), approved June 5, 1990, eff. June 6, 1990.) Among other things, Proposition 115 added section 1050.1, which states: "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."
B. Standard of Review
We review the trial court's determination of good cause for a continuance in a statutory speedy trial case for abuse of discretion. (Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1275; Sutton, supra, 48 Cal.4th at p. 546.) "Statutory interpretation presents a question of law, which we review de novo." (People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.)
C. Good Cause
The threshold question presented is whether the trial court abused its discretion in finding good cause to continue petitioner's trial date beyond the 60-day statutory speedy trial deadline. We shall consider the duration of that continuance only if good cause to continue existed.
1. Section 1050.1 Does Not Provide Good Cause
The People contend good cause existed under section 1050.1 because petitioner's case had been consolidated with the cases of seven other defendants and a continuance was required to maintain joinder. Petitioner says section 1050.1 does not apply because he was not charged in the same indictment as the other defendants. Alternatively, he maintains that even if consolidation (as opposed to joint charging in a single accusatory pleading) were sufficient to invoke section 1050.1, that provision still does not apply because his case was not consolidated at the time the court continued his trial.
To resolve the parties' dispute, we must construe section 1050.1. "[O]ur 'task is simply to interpret and apply the initiative's language so as to effectuate the electorate's intent.' " (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) Our Supreme Court has prescribed the following approach for interpreting statutes, which it has applied to voter initiatives: (1) give the words of the statute their ordinary meaning; (2) construe the language in the context of the statute as a whole and the overall statutory scheme in light of the electorate's intent; (3) if the language is ambiguous, refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet. (Ibid.)
Section 1050.1 applies "[i]n any case in which two or more defendants are jointly charged in the same complaint, indictment, or information . . . ." The foregoing language is unambiguous. By its plain language, section 1050.1 applies only where a single complaint, indictment, or information charges two or more defendants, not where the cases of separately charged defendants have been joined or consolidated.
The overall statutory scheme confirms that reading. As discussed above, section 1098 applies where defendants are "jointly charged," including in "separate accusatory pleadings." Voters, who are presumed to know the law (People v. Cordova (2016) 248 Cal.App.4th 543, 556), chose to use different language in section 1050.1, referring to "the same complaint, indictment, or information" as opposed to "separate accusatory pleadings." Logic dictates they intended a different meaning. Canons of construction are in accord. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 ["Where different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning"].)
The People would have us read the phrase "jointly charged in the same complaint, indictment, or information" to mean "charged in cases that are consolidated." There is no basis in the plain language for that reading; we therefore reject it. The rule against surplusage supports our rejection of the People's construction, which would read the words "the same complaint, indictment, or information" out of the provision. (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038 ["It is a maxim of statutory interpretation that courts should give meaning to every word of a statute and should avoid constructions that would render any word or provision surplusage"].)
Here, the prosecutor filed different complaints against all of the defendants and petitioner was charged by separate indictment. Therefore, section 1050.1 has no application. (A.A. v. Superior Court (2003) 115 Cal.App.4th 1, 6 [section 1050.1 did not apply where minor was not jointly charged in the same pleading with any other minor].) We recognize that petitioner apparently was indicted separately only because he eluded capture for approximately a year and because of Santa Cruz County practice. But these circumstances are not relevant to the applicability of section 1050.1.
2. The State's Interest in a Joint Trial Provided Good Cause
The trial court did not rely solely on section 1050.1 in continuing petitioner's trial. The court was persuaded that petitioner should be tried with the other defendants because their cases all involved the "same events, same counts, same allegations, same witnesses, [and] same evidence," such that "judicial economy" and "common sense" dictated a single trial.
California courts have long recognized that the state's interest in a single trial of jointly charged defendants constitutes good cause for a continuance, even one extending beyond the section 1382 60-day period. (Sutton, supra, 48 Cal.4th at p. 559 ["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"]; Hollis v. Superior Court (1985) 165 Cal.App.3d 642 (Hollis) [trial court did not abuse discretion by continuing petitioner's trial beyond the 60-day limit in section 1382 where co-defendant showed good cause for continuance]; Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 501 (Greenberger) ["if the precipitating cause for trial delay is justifiable, such as codefendants' need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant"], fn. omitted.) Both Hollis and Greenberger predated the enactment of section 1050.1. And our Supreme Court has expressly rejected the notion that section 1050.1 limited "a trial court's [preexisting] authority under section 1382 to continue a codefendant's trial in order to facilitate a joint trial to the circumstances set forth in section 1050.1." (Smith, supra, 54 Cal.4th at p. 601 [a continuance to maintain a joint trial is permissible apart from section 1050.1, and thus "the propriety of such a delay does not rest upon section 1050.1 alone"].)
We have little trouble concluding that, here, the state's interest in trying the defendants together constituted good cause for a continuance. The present case fits the model for a joint trial: all of the defendants are charged with "common crimes involving common events and victims." (Keenan, supra, 46 Cal.3d at pp. 499-500.) And the complexity of the case—as evidenced by the copious discovery and the Escobar defendants' lengthy preliminary hearing—suggests the state's "interest in avoiding multiple trials is especially compelling." (Sutton, supra, 48 Cal.4th at p. 560 [indicating that "when the trials are likely to be long and complex and impose considerable burdens on numerous witnesses" the state's interest in a single trial is "especially compelling"].)
Petitioner argues that if section 1050.1 did not provide good cause, then the continuance was improper because the prosecutor did not comply with the procedural requirements of section 1050. Specifically, the request for a continuance was not accompanied by "affidavits or declarations detailing specific facts showing that a continuance is necessary." (§ 1050, subd. (b).) But that deviation from the prescribed procedure was not grounds to dismiss the indictment. For all the reasons discussed above, good cause to continue the trial existed, which is all section 1382 requires to avoid dismissal. In the circumstances of this case, affidavits or declarations were not required to establish good cause because the pertinent facts—the charges, the evidence likely to be introduced at trial, and the trial schedule—were known to the trial court. And section 1050 itself is "directory only and does not mandate dismissal of an action by its terms." (§ 1050, subd. (l).)
Petitioner assumes section 1050's procedural requirements do not apply where section 1050.1 provides good cause. That is not obvious. By its terms, section 1050, subdivision (b) applies to continuances of "any hearing in a criminal proceeding . . . ." (Italics added.) Nothing in section 1050.1 indicates it offers an alternative procedure to section 1050; it merely addresses the concept of good cause. But we need not decide that point. The fact is, here, section 1050 governed.
3. The Court Did Not Abuse Its Discretion by Finding Good Cause to Continue the Trial for Thirteen Months
The more difficult question is whether good cause existed to justify a five-month (and ultimately a thirteen-month) delay. In making that determination, we must balance a number of competing interests, including petitioner's right to a speedy trial, the right of all of the defendants to effective assistance of counsel, the state's interest in a single joint trial, and the public's interest in judicial economy and efficiency. The requisite balancing process is a "difficult and sensitive" one. (Barker v. Wingo (1972) 407 U.S. 514, 533 (Barker).)
We are disappointed by the People's failure even to address the reasonableness of the continuance's duration.
Most California cases approving continuances beyond the 60-day statutory period to maintain joinder among co-defendants have involved significantly shorter delays. For example, in Sutton, the court continued the trial "on a day-to-day basis and [it] ultimately commenced only six days after the 60-day period," a delay the Supreme Court deemed "clearly . . . reasonable." (Gamache, supra, 48 Cal.4th at p. 562.) Hollis approved a 40-day delay. (Hollis, supra, 165 Cal.App.3d at p. 644 ["the court continued the case to May 31, 1984, 100 days after the filing of the information"].) Greenberger is more analogous, approving a six-month delay. That court considered six factors in deeming the delay reasonable: (1) length of delay, (2) seriousness of charges, (3) complexity of case, (4) prejudice to petitioner, (5) reason for the delay, (6) witness hardship, and (7) burden on the courts. (Greenberger, supra, 219 Cal.App.3d at pp. 504-506.) We consider those factors in the context of this case below.
In determining the relevant factors, the Greenberger court looked to Barker, supra, 407 U.S. at p. 530, which identified four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. (Greenberger, supra, 219 Cal.App.3d at p. 502.)
The first and fourth factors weigh in petitioner's favor. As noted, the length of delay here—thirteen months—is relatively long. Petitioner remains in custody, where he has been since November 2015. "The time spent in jail awaiting trial has a detrimental impact on the individual," and accordingly is prejudicial. (Barker, supra, 407 U.S. at p. 532.) That said, with respect to prejudice, the "most serious" concern is "the possibility that the defense will be impaired." (Ibid.) Here, petitioner has not shown that evidence has been lost or witnesses have become unavailable. (Greenberger, supra, 219 Cal.App.3d at p. 505 [no prejudice to petitioner where "[n]o evidence has been lost and no witnesses have become unavailable to petitioner"].) Therefore, the fourth factor, prejudice, weighs only slightly in petitioner's favor.
The sixth factor—witness hardship—is neutral because neither party has provided us with information about the number of witnesses expected to testify at trial.
The fifth factor—the reason for the delay—likewise is neutral. This factor was first announced in Barker, where the government sought the continuance. The Supreme Court explained that "[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Barker, supra, 407 U.S. at p. 531, fn. omitted.) In Greenberger, the court concluded that co-defendants' interest in effective assistance of counsel constituted a valid reason for a delay. (Greenberger, supra, 219 Cal.App.3d at p. 505.)
Here, the various delays are largely attributable to petitioner's co-defendants' interest in effective assistance of counsel. That, generally, is a valid reason for delay. However, since early this year, petitioner's co-defendants have sought additional time to prepare for trial, in part, because of challenges caused by the manner in which the prosecution has provided discovery. Accordingly, it appears that the government shares responsibility for approximately eight months of delay. Defense counsel scheduling conflicts also have contributed to the delays. Such conflicts are unavoidable in complex multi-defendant cases such as this, and the resulting delays cannot be attributed to the government. (See United States v. Twitty (11th Cir. 1997) 107 F.3d 1482, 1490 ["The unavailability of certain defense counsel cannot be charged to the government. . . . [and does] not militate in favor of finding a violation of the Sixth Amendment"].) Given that the government shares responsibility for a portion of the delay, we view this factor as neutral.
The second, third, and seventh factors—seriousness of charges, complexity of case, and burden on the courts—weigh against petitioner. The charges here are serious—double murder with special circumstances. This is a relatively complex case involving abundant discovery and gang expert testimony. Given that complexity, a longer delay can be tolerated. (Barker, supra, 407 U.S. at p. 531.) And multiple trials would impose an additional burden on the courts.
This is a close case. The delay at issue far exceeds the 60-day period within which the Legislature has determined criminal trials should commence. Petitioner has been subjected to an extended period of pretrial incarceration and its associated disadvantages, which should not be understated. But, significantly, he has not shown the delay—which was necessary to permit a joint trial, and thus the efficient use of district attorney and judicial resources—will impair his defense to the very serious charges he faces. Accordingly, we conclude the trial court did not abuse its discretion in continuing petitioner's trial until September 25, 2017.
Like the court in Greenberger, supra, 219 Cal.App.3d at p. 507, fn.18, we think it wise to note that "[w]e have not held and do not imply that additional delay would be justified."
III. DISPOSITION
The petition for a writ of mandate and/or prohibition is denied.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.