SMITH v. S.C. (PEOPLE)

Real Party’s in Interest Petition for Review

Cal.November 10, 2010

od s Jn the Supreme Court of the State of California DONALD SMITH, Petitioner, \ SUPREME COURT SOPERIOR COURT OF THE CITY AND COUNTYOF SAN FRANCISCO, a NOV 10 2010 Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. Frederick K. Ohirich Clerk Deputy First Appellate District, Division Five, Case No. A124763 San Francisco County Superior Court, Case No. 207788 The Honorable Ksenia Tsenin, Judge PETITION FOR REVIEW EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General STAN HELFMAN Supervising Deputy Attorney General State Bar No. 49104 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5854 Fax: (415) 703-1234 Email: Stan.Helfman@doj.ca.gov Attorneysfor Real Partyin Interest TABLE OF CONTENTS Page Tssue Presented ...... ccc ccesccsesssessecesseeescevevecsevsctencneneesecereseveveseecetececececeeecese 1 Statement of the Case and Facts ............ccccssccccceseeeeeceececsesecsseceessesecstssacceesess 1 Reasons for Granting ReVieW .......ccccccccccescscscsssessesesesetscsesesesestsresssesesvensenes 3 CONnclusiON ......ecc eee cesceceeesecesenceeessseauceeesecececettcscsecsscsesececsesessseesecteseeesceenes 11 TABLE OF AUTHORITIES Page CASES Arroyo v. Superior Court (2004) 119 Cal.App.4th 460occcccccssccssecsseccscessesseecsseesseesseeessersns 5 Barsamyan vy, Appellate Division ofthe Superior Court ofLos Angeles County (2008) 44 Cal.4th 960.0... cccccccsecsscseeseecseecseessesressesseessesssesseessesseees 4 DeVita v. County ofNapa (1995) 9 Cal.4th 763... ccccccccccscscccessscsecsecssecssecseesecssesseessessesssseesseneens 7 Malengo v. Municipal Court (1961) 56 Cal.2d 813 occ ccccccessesscsecsseecseseesseeseesesnesesesssesneessneares 8 People v. Graves (2010) Cal.App.4th _, 2010 Cal.App LEXIS1833.0... 9 People v. Rubaum (1980) 110 Cal.App.3d 930 oo. ccccscscsssessecsssseessesssessessesssseeescaeens 1] People v. Sutton (2010) 48 Cal.4th 533 oo. cccccscecsecsseessseeeesseseesecessneeseesesreesas passim Richardon v. Marsh (1987) 481 U.S. 200 occeeccsccssceseeseseesseeseesssesssessssesseececeseeesseeestes 1 Sanchez v. Superior Court (1982) 131 Cal.App.3d 884 oo... cccccccsccessecsseecssesseecsescsseesseeesseeseeesees 5 STATUTES Penal Code BSDieccccecsseeesceseesenecseessseenevcecsssseesseeeeetssaesneesaseeeeesssssseseaseseenss 1 8 LOSO. oeeecceecceeeceeseeneeecseeseesesecsesseecseeesseeseesseessnessneessseseneeens passim 9 1098eeeeseesecteeecseeseeeeneceeesseeeseessecsaeeseaeeceesaescaeseseessrennetenseengeeas 7 8 38Diccccceesccesesssecsnsecesseccessseesesseeeceesseeceeseeeessaeeeesssaeeeenas passim § 1383 ee ecceceeeeseetceeececeseeesesesecssescseenseseeessescseceaecnseserseseessseseseecaees 10 ii TABLE OF AUTHORITIES (continued) Page CONSTITUTIONAL PROVISIONS California Constitution article I, § 30, subd. (8)... cccecessscesseessecesssseeeceseeesseceentens 7,8, 10 © COURT RULES California Rules of Court TUle 8.490 (D)(3)......cccccccccsessseccesssecscseecscseccstecerseeeeeeusceeesasessensasersaeesenss 1 Tule 8.500(C)(L) ccccccccesccsecssscsscecseecsecsecstessceccssessecsuecseessesscsseeseeeasy 1 lil The People petition for review of the published decision of Division Five ofthe First Appellate District granting a writ of mandate. (Exhibit A.) The Court of Appeal filed the decision on October 28, 2010 and deemedit final as to that court in five days. This petition is timely. (Cal. Rules of Court, rules 8.490(b)(3) & 8.500(e)(1).) ISSUE PRESENTED Penal Code section 1382, subdivisions (a)(2)(B) adds a 10-day “grace period” beyond the date to whichtrial is continued at the request or with the consent of a criminal defendant. The provision frequently creates tension with this established principle: joint trials play a vital role in the criminal justice system. (Richardon v. Marsh (1987) 481 U.S. 200, 209.) The issue presented is whetherthe strong interest in joint trials justifies the brief delay ofthe trial of an objecting defendant, where the 10- day grace period appliesto thetrial of a jointly charged codefendant. - STATEMENT OF THE CASE AND FACTS On February 10, 2009, the San Francisco District Attorney charged petitioner Smith and codefendant Sims by information with first degree residential burglary (Pen. Code, § 459, further citations to statute are to this code). Both were arraigned on February 11. Smith did not waive his statutory right to trial within 60 days ofthat date (§ 1382). The court was informed on April 10, 2009, that counsel for Sims wasill and unavailable. As to Smith, the court considered severance or dismissal because the last day for trial was the following Monday, April 13. The District Attorney argued that good cause existed to continue the trial of both defendants. On April 13, Sims’s counsel remainedill and unavailable. Smith objected to any continuance. The court found goodcause to continue the trial for both-defendants, noting: “Greenberger [v. Superior Court (1990) 219 Cal.App.3d 487 (Greenberger)| says essentially this is an issue [of] whether a joinder overrides defendant’s right to a speedytrial. Greenbergersays if the only reason to continue a case pastthe last day is to keep the cases joined, that’s not good cause under[section] 1382.... But another reason,like, for example, one of the attorneys needs moretime to investigate, then—I’mgoingto interpret that as the situation here—where one attorneyis ill and not able to cometo court, that does constitute good cause to continuethis past the last day for the codefendant, as well as the defendant, whois represented bytheill attorney.” On April 14 and April 16, the court found good cause to continue the trial of both defendants, over Smith’s objection, due to the continuedillness of Sims’s attorney. On April 17, Sims’s counsel advised the court that he anticipated being readyto try the case in one week. The court found good cause to continue the matter to April 22, over Smith’s objection. On April 23, Sims’s counsel wasstill ill, but advised the court he would be ready fortrial on Monday, April 27. The court stated: “For the record, [Sims’s counsel] will be available and readyto try this and fully recovered on Monday, which meansthelast for trial, according to case law, would be 10 days after Monday, April []27th. [§]] So by mycalculations, May 7th would bethe last day.” On April 27, the court, over Smith’s objection, put the case over to April 28. On April 28, Smith moved to dismiss for violation of his - statutory speedtrial right. The court denied the motion. Smith petitioned the Court of Appeal for a writ to dismiss the charges. __ On October 13, 2009, the Court of Appeal held, in a published decision,thatthetrial court violated Smith’s state speedytrial right by delaying his trial two days to maintain joinder with Sims’s trial, which was delayed by the statutory 10-day grace period when Sims requested a continuance to April 27 due to his attorney’s illness. The Court of Appeal acknowledgedits decision places the People “in the difficult circumstance of being required to proceed on a date certain when delay is cause by a jointly charged codefendant, and not by action or inaction attributable to the prosecution.” . | The People petitioned for review. This Court granted review and held the case, pendingits decision in People v. Sutton (2010) 48 Cal.4th 533. After deciding Sutton, the Court retransferred this case to the Court of Appeal to vacate its decision and reconsiderin light of the decisionin that case. On October 28, 2010, the Court of Appeal held that Sutton does not alter the analysis or conclusion in its prior decision. The Court of Appeal again ordered dismissal of the burglary charges against Smith. REASONS FOR GRANTING REVIEW The People respectfully request this Court to grant review of the important issue of first impression presented in this case. Criminaltrials will be greatly impacted throughoutthe state by the Court of Appeal’s published decision. The decision bears significant potential for mischief in the conductofjointly charged cases. This case involves the interplay of two statutes regulating the time for felony trials. Section 1382 provides that a felony defendant must be tried within 60 days of arraignment. If the defendant requests or consents toa continuance for good cause beyond the 60 days, the statute augments the request by 10 days. (§ 1382, subd. (a)(2)(B).)' This 10-day “grace period” ' In pertinent part, section 1382 provides: “(a) The court, unless good cause to the contrary is shown,shall order the action to be dismissed in the following cases: . .. In a felony case, when a defendantis not broughtto trial within 60 days of the defendant’s arraignment on an indictment or information .... However, an action shall not be dismissed (continued...) was enactedin 1959 to prevent defendants from forcing the trial court and the People to trial on a day of the defendant’s choosing, without adequate time tosecure a courtroom and the attendance of witnesses. The 10-day period was selected becauseit is short enough to protect a defendant’s state law right to a speedytrial. (See Barsamyanv. Appellate Division of the Superior Court ofLos Angeles County (2008) 44 Cal.4th 960, 979.) Section 1050.1, added by Proposition 115 in 1990, implements California’s strong preference for jointtrials ofjointly charged defendants. It provides that wherethetrial of the one jointly charged defendantis continued for good cause, that continuanceis, itself, good cause to continue the trial of all defendants “‘so as to maintain joinder.” (/bid.) Severance of cases due to the unavailability or unpreparedness of one or more defendants is prohibited by the statute unlessit is “impossible”for all defendants to be available and prepared within a reasonable periodoftime.” (Jbid.) (...continued) underthis paragraphif either of the following circumstances exist: (A) The defendant enters a general waiver of the 60-daytrial requirement. (B) The defendant requests or consents to the setting ofa tnal date beyond the 60-day period. Whenevera caseis 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 broughtto trial on the date set fortrial or within 10 days thereafter... .” The 10-day grace period also implies to misdemeanortrials. (See § 1382, subd. (a)(3)(B).) * Section 1050.1 provides,in pertinentpart, In any case in which two or more defendants are jointly charged, in the same. . . information, and the court .. . for good cause (continued...) In Sutton, this Court overruled Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, and Arroyo v. Superior Court (2004) 119 CalApp.4th 460, both cases relied on by the Court of Appeal here. In Sutton, the Court emphasized that “past decisions of this Court makeit clear that the substantial state interests served by ajoint trial may support afinding of good cause to continue a codefendant’s trial beyond the presumptive statutory period set forth in section 1382.” (48 Cal.4th at p. 562, italics added) | In Sutton, codefendants Jackson and Sutton were jointly charged with sale and possession of cocaine. On the 60th andfinal day for trial under section 1382, Jackson’s counsel indicated that he was unavailable because he was engagedin anothertrial. Both defendant’s cases were continued -“day to day” for about a week. On appeal, the defendants argued that Jackson’s counsel’s trial in the other matter was not good cause for a continuance. Sutton argued separately assuming good cause existed to continue Jackson’s trial, that codefendant’s counsel’s unavailability was not good cause to continue his own case. This Court disagreed on both points. Asto Sutton’s own case, which is the case analogous to petitioner Smith’s, this Court stated that the “state’s interest in a jointtrial” mayitself constitute good cause to continue a codefendant’s case: “[A] trial court properly mayfindthat the significant state interests that are furthered by (...continued) shown, continues the ... trial of one or more defendants, the continuanceshall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder. The court... shall not cause jointly charged cases to be severed dueto the unavailability or unpreparedness of one or more defendants unless it appears to the court. . . that it will be impossible for all defendants to be available and prepared within a reasonable period of time. conducting a single trial ofjointly charged criminal defendants constitute good cause to continue a codefendant’s trial beyond the presumptive statutory period designated ....” (Ud. at p. 545.) While not directly deciding the issue in this case of whether the 10-day grace period in section 1382 extends to the codefendant, the language in Sutton is in severe tension with the Court of Appeal’s reinstatementof its original decision. If the interest in maintainingjointtrials is itself good cause to continue a codefendant’s trial, it should not matter whetherthetrial of the codefendant whooriginally sought the continuance properly begins within the 10-day grace period, as opposedto a period when codefendant’s counselis actually unavailable for trial. The grace period, which exists as a matter oflegislative policy without regard to any defendant’s consent or acquiescence,does not dissipate the good cause for maintaining joinder. Moreover, in Sutton, this Court repeatedly emphasized that the continuance wasnot open ended, but only for a few days. So too here, the People do not seek any prolonged extension. Indeed, Smith has never argued that he wasactually prejudiced by the additional continuance afforded by the grace period. The Court of Appeal erred in its conclusion that “Sutton does notalter the statutory analysis on which our prior decision was based.” (Slip opn.at p. 1.) Contrary to the Court of Appeal’s view, Sutton speaks to cases like this one. In a passage unnoted by the Court of Appeal, Sutton admonishes that [w]hen the proposed delay to permit a single joint trial 1s relatively brief, the substantial state interests that are served in every instance by proceeding in a single jointtrial generally will support a finding of good cause to continue the codefendant’s trial under section 1382, even whenthere is not indication that, were the defendants’ trials to be severed, the separatetrials would beunusually long or complex. (See, e.g., People v. McFarland, supra, 209 Cal.App.2d 772, 776-778; see also § 1050.1.) (48 Cal.4th at pp. 559-560 italics added) California’s jointtrial policy serves importantinterests. It minimizes the harassment of crime victims, their survivors, and families, and of witnesses. It reduces demandson the limited pool ofprospective jurors. Additionally, it conserves scarce judicial and prosecutorial resources.° The Court of Appeal ignored those interests and adopted an interpretation of sections 1382, subd. (a)(2)(B) and 1050.1 that is simply erroneous. It requires the trial court to jettison the 10-day grace period imposedbythe legislature in section 1382, subd. (a)(2)(B), unless good cause (other than the interest in maintaining joinder)justifies briefly delaying the defendant’s trial in order to maintain the preferenceforjoint trial found in section 1050.1. The opinion threatens the very evils the 10- day grace period wasintended to prevent whenevera jointly charged defendant objects to a continuance beyond 60 days properly obtained by a codefendant. Under accepted rules of statutory construction, “[w]hen two statutes touch upon a commonsubject, they are to be construed in reference to each other, so as to ‘harmonize the two in such a waythat no part of either becomes surplusage.’ [Citations.] Two codes ‘must be read together and so construedas to give effect, when possible, to all the provisions thereof.’ [Citations.]” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, * Article I, section 30, subdivision (a) of the California Constitution provides: “This Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the People through the initiative process.” The Legislature prescribed it through Proposition 115, which enacted both section 1050.1 and the foregoing provision of the state Constitution. Section 1098 provides that where two or more defendants are jointly charged, “they must betried jointly unless the court order separatetrials .. . .” (Italics added.) Section 1098 states a preference for jointtrials. 778-779, internal quotations marks omitted.) The opinion belowfails to harmonize sections 1050.1 and 1382. It also appears to facially conflict with article I, section 30, subdivision (a) of the state Constitution by prohibiting joinder of criminal cases in a mannerother than prescribed in those statutes. The Court of Appeal’s decision may be explained by the fact that this Court has not yet directly held that a continuanceoftrial requested or consented to by a defendant, together with the 10-day grace period automatically added bystatute, is good cause to delay the trial of a codefendant, so as to maintain the jointtrial, as required by Penal Code section 1050.1. This case presents an appropriate opportunity to makethat point. Since Sims’s counsel’s illness constituted a good cause to continuethe trial of both defendants notwithstanding Smith’s objection, the 10-day grace period addedby section 1382, subdivision (a)(2)(B) to Sims’s continuance, applied to Smith in light of section 1050.1. The state’s interest in maintaining joinder provides good cause for the grace period delay of Smith’s trial. . By permitting the Peopleto try the case within 10 days after the date to which the requesting defendant announcesready, the Legislature has determined,in effect, “good cause” exists up to 10 days after the date requested by the defendant. In other words, the 10-day grace periodis automatically part of the period for which “good cause”justified the continuanceoftrial in the first place, and no additional showing of good cause is required. “No showing of good cause was necessary to support [the People’s] request to bring defendantto trial within ten days after the last date to which he had consented ... since that statute provides that the action ‘shall not be dismissed’if this is done.” (Malengo v. Municipal Court (1961) 56 Cal.2d 813, 815-816.) Asrecently as 2008, our Supreme Court restated this interpretation of section 1382: “In addition to enabling courts to ensure the availability ofjudicial resources, the 10-day grace period afforded by section 1382(a)(3)(B) serves the interests of both the prosecution and of defendants because, while maintaining the defendant’s right to speedytrial, it also ‘protects the People by giving them 10 days if necessary.’ [Citations.] Implicitly recognizing the importanceto the prosecution of having thefull 10 days available to it, various decisions have concluded that a court should not enter a dismissal pursuant to section 1382for prosecutorial delay within the 10 days even in the absence ofa showing ofgood causefor delay. {Citations.] [9] Accordingly, ... a defense objection concerning a prosecutor’s requestto trial within the 10-day period would ‘serve[ | no pragmatic function.’ [Citation.]... ‘Jn effect, the 10-day grace period, by precluding any effective defense objection, effects the consent ofthe defendantto be broughtto trial at any time within the 10-day period.’ (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 978-979,italics added.) (People v. Graves (2010) —-—-Cal.App.4th —,_—_—, 2010 Cal.App LEXIS 1833) . Under Penal Codesection 1050.1, one defendant’s good cause continuance—whichbystatute includes the 10 day grace period—justifies continuingtrial as to all, so as to maintain joint trial. No additional showing of good causeis required under 1050.1 The concept of “good cause” properly understood in this way supports a harmoniousinterplay of sections 1382 subdivision (a)(2)(B) and 1050.1. The Court of Appeal’s decision charts a virtual roadmap for jointly charged defendants to force severance, thus defeating the Legislature’s strong preference for jointtrials ofjointly charged defendants. For example, suppose counsel for defendant #1 states that he cannot proceedtotrial until the 90th day becausehe is in a two-month murdertrial. Defendant #2 objects, but under section 1050.1 his objection would be overruled. But suppose on the 75th day, counsel for defendant #1 announcesthat his other trial suddenly concludedandhe is now available for trial. Under the decision in this case, the People would have the benefit of the 10-day grace period to try defendant #1, but would be forcedto try defendant #2 immediately on the 75th day. “Good cause”(as the Court of Appeals defines it) would not exist to continue defendant #2’s trial, and therefore section 1050.1 would not apply. The concern is far more than hypothetical in an age of gangtrials where defendants are routinely charged jointly for multiple serious crimes. A host of reasonscan justify the continuance of joint trials over the objection of one or more defendants, includingillness of counsel or a defendant, conflicting trial schedules, or the inability to locate a witness relevant for one defendant but not the others, to namejust a few possibilities.* The opinion below incorrectly interprets the “good cause” requirement for continuancesoftrial in view of Sutton and Proposition 115’s constitutional prohibition against construing a defendant’sstate speedytrial rights in a mannerprohibiting joinder as prescribed bystatutes including sections 1382 and 1050.1. (Cal. Const., art. I, § 30, subd.(a).). The Court of Appeal acknowledgesthat its ruling places the People “in the difficult circumstance of being required to proceed on a date certain when delay is caused by a jointly charged codefendant, and not by action or inaction attributable to the prosecution.” The opinion resurrects the very evils regarding severance ofjointly charged defendants that the 10-day period was intended to eliminate. Dismissal within the automatic 10-day * The Legislature’s enlargement by 10 days of a defendant’s request for a continuance for good causeis itself “sufficient reason” to continue trial ofjoined codefendants undersection 1383. It reads: If the defendant is not chargedortried, as provided in section 1382, and sufficient reason therefore is shown, the court may order the action to be continued from time to time... . 10 period is against legislative policy and notin the furtheranceofjustice. (See People v. Rubaum (1980) 110 Cal.App.3d 930, 935.) CONCLUSION It is respectfully submitted that review should be granted. Dated: November9, 2010 Respectfully submitted, EDMUNDG. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN \ Supervising Deputy Attorney General ao STAN HELFMAN Supervising Deputy Attorney General Attorneysfor Real Party in Interest SF2009201950 20366018.doc 1] CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 3,262 words. Dated: November9, 2010 EDMUND G. BROWN JR. Attorney General of California STAN HELFMAN Supervising Deputy Attorney General Attorneysfor Real Party in Interest DECLARATIONOF SERVICEBY U.S. MAIL Case Name: Smith v. Sup. Ct. of the City and County of San Francisco No:: I declare: 1 am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On November 10, 2010, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Douglas Cory Welch County of San Francisco Attorney at Law Hall of Justice Office of the Public Defender Superior Court of California 555 7th Street 850 Bryant Street San Francisco, CA 94103 San Francisco, CA 94103 The Honorable Kamala D.Harris First District Appellate Project District Attorney Attention: Executive Director San Francisco County District Attorney's 730 Harrison St., Room 201 Office . San Francisco, CA 94107 850 Bryant Street, Room 325 San Francisco, CA 94103 First Appellate District, Division Five Court of Appeal of the State of California. 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on November 10, 2010, at San Francisco, California. A. Murillo Ms Centhy Declarant ' ¢ Signature SF2009201950 40468891 .doc -ATTACHMENT Filed 10/28/10 (opn. on remand from Cal. Supreme Court following grant of review) CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE DONALD SMITH, Petitioner, Vv, THE SUPERIOR COURT OF THE CITY A124763 AND COUNTYOF SAN FRANCISCO, | dent: (San Francisco City and County Respondent, Super. Ct. No. 207788) THE PEOPLE, Real Party in Interest. Donald Smith contendsthat his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss. We agreed and granted the requested relief. The People petitioned for review. The California Supreme Court directed this court to vacate our prior decision and reconsiderin light of People v. Sutton (2010) 48 Cal.4th 533 (Sutton). We conclude that Sutton does not alter the statutory analysis on which our prior decision was based. Accordingly, we grantthe relief requested by Smith. 1. FACTUAL AND PROCEDURAL BACKGROUND On February 10, 2009,! an information wasfiled, jointly charging Smith and Christopher Sims with one felony count offirst degree residential burglary (Pen. Code, 1 Unless otherwise specified, all dates stated herein occurredin the year 2009. 1 § 459).2. Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived. April 13 was calculated as the last day for trial. The court was informed on April 10 that counsel for codefendant Sims wasill and unavailable for trial. As to Smith, the court indicated its intent to sever or dismiss because the last day fortrial was the following Monday, April 13. However, the People argued that good cause existed to continue the case for both defendants and notto effect a severance. | On April 13, the last statutory day for trial, the court was informed that Sims’s counsel remained ill and unavailable. Counsel for Smith objected to any continuanceas to his client. The court, however, found good cause to continuethetrial for both defendants, noting: “Greenberger[v. Superior Court (1990) 219 Cal.App.3d 487 (Greenberger)] says essentially this is an issue [of] whether a joinder overrides defendant’s right to a speedy trial. Greenberger says if the only reason to continue a case past the last day is to keep the cases joined, that’s not good cause under[section] 1382 _... But another reason, like, for example, one of the attorneys needs moretimeto investigate, then -- I’m going to interpret that as the situation here -- where oneattorney is ill and not able to cometo court, that does constitute good cause to continuethis past the last day for the codefendant, as well as the defendant, whois represented by the ill attorney.” The court further indicated: “Today is pretty muchstill the last day. We will trail it day by day. I have to find out what [Sims’s counsel’s] condition is, when he can be able to come back, and when he will be able to tell me: Yes, I’m readyto gototrial. [{] So I think the only safe thing to do is trail it day by day and put it overto the 14th.” On April 14 and April 16, the court made further findings of good causeto continue the trial of both defendants, over Smith’s objection, due to the continuing unavailability of Sims’s attorney. On April 17, Sims’s counsel appeared and stated that he anticipated being ready to try the case in a week. The court found good cause for continuing the matter to April 22, again over Smith’s objection, but also indicated: 2 Unless otherwise noted,all further statutory references are to the Penal Code. 2 “What we have to do, we have to be sure that I have counsel who’s available, in the sense of well enoughto do it. But then I will kick it to the last day, and I haveto find a courtroom.” On April 23, Sims’s counsel remainedill buttold the court he would be ready to try the case on April 27. The court stated: “For the record, [Sims’s counsel] will be available andready to try this and fully recovered on Monday, which meansthe last day for trial, according to case law, would be 10 days after Monday, April []27th. [J] So by my calculations, May 7th would be the last day.” (Italics added.) Smith maintained his objection to further continuances. On April 27, the court, without discussion and over Smith’s objection,“rolled” the case over until April 28. The matter wasrecalled later that same day, when Smith’s counsel was not present, and the following exchange occurred on the record: [THE PEOPLE]: Can werecall one more matter? Line 402. It’s the Sims matter. [Sims’s counsel], can we put that matter over until the 28th? It’s a no-time waiver. So I need someclarification on the record from [Sims’s counsel]. THE COURT: [Sims’s counsel], on Christopher Simms[sic] werolled it over "until tomorrow. [The prosecutor] needsclarification. [THE PEOPLE]: Well,it’s past the -- [SIMS’S COUNSEL]: No. No. [THE PEOPLE]: -- last day. I just want to -- THE COURT:It’s not past the last day. [SIMS’S COUNSEL]: There was a ruling. Thelast day isMay 7th. [THE PEOPLE]: Okay. As longas that’s clear. [Smith’s counsel] has been objecting all this time on the codefendant matter. THE COURT:I haveit listed as May 7th as the last day. 3 It is not clear what occurred on April 22. However, Smith concedesthat all continuances up until April 27 were supported by good cause. 3 On April 28, Smith’s counsel moved to dismiss. Althoughthe record before us does not include an explicit ruling on the motion, the parties agree that the motion was denied. After Smith filed a petition for writ of mandate, we stayed the trial court proceedings against him andissued an order to show cause. In prior opinion, we granted Smith’s petition and directed the Superior Court to enter a new and different order dismissing the information pending against Smith. The People filed a petition for review. Our Supreme Court granted review and placed the case on hold, pending its decision in Sutton, supra, 48 Cal.4th 533. After the court issued its opinion in Sutton, it transferred this case to us with directions to vacate our prior decision and reconsiderthe cause in light of that opinion. (Cal. Rules of Court, rule 8.528(d).) As directed, we address Sutton and its application to this case. Because we agree with Smith that Sutton is largely inapplicable to the issues presented here, we reiterate the conclusions reachedin our prior opinion. II. DIscussion In this case we are required to reconcile the legislatively expressed preference for joint prosecutions with the right of a defendant to a speedy trial. We must interpret and apply the relevant provisions of section 1382, and consider the application and effect, if any, of section 1050.1, enacted bythe voters in 1990 in Proposition 115. “The right to a speedytrial is a fundamental nght. [Citation.] It is guaranteed by the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The Legislature has also provided for ‘ “a speedy and public”trial as one of the fundamental rights preserved to a defendant in a criminal action. (§ 686, subd. 1.)’ [Citation.] To implement an accused’s constitutional nght to a speedytrial, the Legislature enacted section 1382. [Citation.] [§] That section ‘constitutes a legislative endorsementof dismissal as a proper judicial sanction for violation of the constitutional guarantee of a speedytrial and as a legislative determination that a trial delayed more than [the prescribed period] is prima facie in violation of a defendant’s constitutional right.’ [Citation.] Thus, an accusedis entitled to a dismissal if he is ‘brought totrial’ 4 beyond the time fixed in section 1382. [Citation.]” (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.) Section 1382, as amendedby Statutes 2005, chapter 36, section 1,4 provided in relevant part: “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissedin the following cases: [{] (1) When a person has been held to answerfor a public offense and an informationis notfiled against that person within 15 days. [{] (2) Ina felony case, when a defendantis not broughtto trial within 60 days of the defendant’s arraignmenton an indictment or information, or reinstatement of criminal proceedings .... However, an action shall not be dismissed underthis paragraph if either of the following circumstancesexist: [§] (A) The defendantenters a general waiver of the 60-day trial requirement. A general waiver of the 60-daytrial requirement entitles the superior court to set or continue trial date without the sanction of dismissal should the case fail to proceed on the dateset for trial. If the defendant, after propernotice to all parties, later withdrawshis or her waiver in the superior court, the defendant shall be broughtto trial within 60 days of the date of that withdrawal. Ifa general time waiver is not expressly entered, subparagraph (B) shall apply. [{] (B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. Whenevera caseis 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 broughtto trial on the dateset fortrial or within 10 days thereafter.” (Italics added.) The statute therefore provides for a 10-day “grace period” when continuance beyond the 60- day felony limitation is attributable to “the defendant.” Smith was not broughtto trial within 60 days of his arraignment, andit is clear that Smith did not generally waive his speedytrial rights. Smith consistently objected to continuances, and while Smith does not challenge the showing of good cause for the ~ 4 Section 1382 has been amended,effective January 1, 2010. (Stats. 2009, ch. 424, § 1.) However, the amendmentsto the statute have no impact on the issues addressed herein. continuances to April 27, no attempt was madebythe prosecution to show good cause to continue the trial beyond April 27.° Thetrial court assumed, and the People argue, that dismissal was not compelled because the 10-day grace period to bring the matter to trial, provided to the People by section 1382, subdivision (a)(2)(B), automatically applied to an objecting defendant whose codefendant requested a continuance. Smith contendsthat Sims’s requests for continuance may not be imputed to him. Accordingly, the question is, since section 1382, subdivision (a)(2)(B) provides that the prosecution had the obligation to try Sims on April 27 or within 10 days thereafter (because Sims had requested continuances due to the unavailability of his counsel), does that same 10-day grace period applicable to Simsalso apply to the trial of Smith? We concludethatit does not. We also reject the People’s argument that section 1050.1 operates, on these facts and in the absence ofgood cause shown, to extend the 10-day grace period to any jointly charged defendant.® A. Standard of Review and Statutory Construction Principles A trial court’s decision to grant a continuance for good cause is reviewed for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 852-853; Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.) However, statutory construction is a question of law that we review independently. (People v. Love (2005) 132 Cal.App.4th 276, 284.) To obtain pretrial relief, a defendant denied his orherstatutory right to a speedytrial is 5 No contention was made, for example, that material witnesses were unavailable to the prosecution. (See People v. Shane (2004) 115 Cal.App.4th 196, 203.) 6 Section 1050.1 provides: “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,ortrial 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 unlessit appears to the court or magistrate that it will be impossible forall defendants to be available and prepared within a reasonable period oftime.” 6 not required to affirmatively show prejudice from the delay. (Hollis v. Superior Court, supra, 165 Cal.App.3d at p. 645; People v. Wilson (1963) 60 Cal.2d 139, 151.) The goal of statutory interpretation is to ascertain and effectuate the Legislature’s intent. (People v. Standish (2006) 38 Cal.4th 858, 869.) “ ‘In determining suchintent, we begin with the languageofthe statute itself. [Citation.] That is, we look first to the words the Legislature used, giving themtheir usual and ordinary meaning.’ [Citation.]” (Ibid.) “ * “If the words ofthe statute are clear, the court should not add to or alter them to accomplish a purposethat does not appear on[its] face . . . or from its legislative history.” ’ [Citation.]” (People v. Mackey (1985) 176 Cal.App.3d 177, 184.) “Only when ambiguity exists do we ‘examinethe context of the statute, striving to harmonize the provision internally and with related statutes, and we may also consult extrinsic indicia of intent as contained in the legislative history of the statute.’ [Citation.] In addition, penal statutes are generally construed most favorably to the defendant. [Citation.] The same principles of statutory interpretation also apply to voter initiatives. [Citation.]” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 727 (Ramos).) B. Sutton In Sutton, our Supreme Court considered (1) whethera trial court abusedits discretion by finding good causeto delay trial for a defendant, Willie Jackson, when his appointed counsel unexpectedly remained engaged in an ongoingtrial in anothercase, and (2) if so, whether the trial court abusedits discretion in determining that the circumstances also constituted good cause to delaythetrial of a jointly charged codefendant, Michael Sutton. (Sutton, supra, 48 Cal.4th at pp. 541-544, 547.) Both Jackson and Sutton arguedthattheir statutory speedytrial rights were violated when, on the 60th day after arraignment, Jackson’s appointed counsel was engaged in anothertrial that had continued longer than anticipated, and the court continuedtrial on a day-to-day basis for six days over the defendants’ personal objections. (/d. at pp. 537-538, 541-545 & fn. 5.) Thetrial court concluded that good cause existed to delay thetrial of both defendants andtrial ultimately commenced on the 66th day after arraignment, the same day Jackson’s counsel announcedthat his othertrial had been completed. (/d. at pp. 538, 7 541-544, 553.) The trial court denied both defendants’ motions to dismiss and the Court of Appeal affirmed both defendants’ convictions. (Ud. at pp. 542-543, 544-545, 556, fn. 11.) . On review, the Supreme Court noted that neither defendant had consented to having his case broughtto trial beyond the 60-day period provided in section 1382 and that, accordingly, resolution of the case required analysis of the “good cause” prong of section 1382, subdivision (a). (Sutton, supra, 48 Cal.4th at p. 546.) The court said: “{T]n general, a numberof factors are relevant to a determination of good cause: (1) the nature and strength ofthe justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendantor the prosecutionthatis likely to result from the delay. [Citations.]” (Jbid.) Onthe first point under consideration, both defendants argued that the trial court had erred in concluding that appointed counsel’s engagementin anothertrial constituted good cause to delay Jackson’s trial, over his personal objection. (Sutton, supra, 48 Cal.4th at p. 538.) Defendants relied on People v. Johnson(1980) 26 Cal.3d 557, 563-564 (Johnson), which held thata trial court had abusedits discretion by finding good cause when a public defender sought continuances over the defendant’s personal objection, because he was engaged in anothertrial and had twoothertrials scheduled in older cases. (Sutton, at pp. 538, 544-545, 547-551.) The Johnson court stated: “The . state cannot reasonably provide against all contingencies which may create a calendar conflict for public defenders and compel postponementof some oftheir cases. On the other hand, routine assignmentof 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 owesto other clients to excuse its denial of a speedytrial to — the instant defendant. [§]... [9]... Under these circumstances we think the court should inquire whetherthe assigned deputy could be replaced by another deputy or appointed 8 counsel who would be able to bring the case to trial within the statutory period. ... If, on the other hand, the court cannot ascertain a feasible methodto protect defendant’s nght, 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 delayis 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, fn. omitted; Sutton, supra, 48 Cal.4th at p. 551.) The Sutton court distinguished its prior decision in Johnson, noting that “[t]he circumstances presented in Johnson—in which a lengthy delay in bringing a criminal case to trial wasattributable to the state’s chronic failure to provide a numberofpublic defenders sufficient to enable indigent defendants to proceed totrial within the presumptive statutory period—are clearly distinguishable” from a brief delay, on a day- to-day basis, in order to permit counsel to completea trial that ran longer than anticipated. (Sutton, supra, 48 Cal.4th at pp. 538, 552-553.) The court emphasized that _ the delay at issue in the latter situation could not fairly or reasonably beattributed to the fault or neglect ofthe state. (/d. at pp. 538, 552-554.) Accordingly,the court rejected the defendants’ contention that “the continued engagement of Jackson’s counsel in anotherclient’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.” (d. at p. 556, fn. omitted.) “Havingfound that the engagement of Jackson’s counsel in anothertrial constituted a legitimate ground to delay Jackson's trial,” the court concludedthat“in light of the very brief duration of the delay in the commencementofthe trial and the absence of any indication that the delay adversely affected defendants’ ability to defend themselves against the charges, the Court of Appeal properly found thatthe trial court did not abuseits discretion in finding good cause existed to deny Jackson’s motion to dismiss the proceeding under section 1382.” (d. at p. 557, italics added, fn. omitted.) Turning to the issue of whetherthetrial court erred in finding good causeto continue codefendant Sutton’s trial, the court observed: “when, as here, two defendants are jointly charged in an information andthe trial court continues the trial as to one of 9 “a the defendantsfor good cause, section 1050.1 provides that the continuanceof 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 defendantsto be tried jointly.” (Sutton, supra, 48 Cal.4th at p. 558, italics added.) ‘The court rejected Sutton’s argumentthat the state interests served bya jointtrial cannot constitute good cause to delay a codefendant’s trial for even a short period of time beyond 60 days. (Sutton, supra, 48 Cal.4th at pp. 560-562.) In so doing, the court noted that Sutton relied on broad language in Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 893 (Sanchez) and Arroyo v. Superior Court (2004) 119Cal.App.4th 460, 465-466 (Arroyo) that went beyond the circumstances presented and which suggested that joinder interests can never support a finding of good cause undersection 1382. (Sutton, supra, 48 Cal.4th at pp. 561-562.) In Sanchez, one of the jointly charged defendants was in custody and another codefendant was out on bail. The public defender representing the noncustody codefendant obtained a continuanceofthetrial date because he was engaged in another trial and had twoother “must-go” criminaltrials immediately thereafter. (Sanchez, supra, 131 Cal.App.3d at p. 887.) The Court of Appeal concluded that good causeto continue, as to the objecting incarcerated codefendant, was not shown because the delay wasdirectly attributable to the state’s failure to provide a sufficient number of public defenders. (/d. at p. 890.) However, the Sanchez court also stated: “We conclude that on balance, whatever unspecified ‘interests ofjustice’ might be promoted bya 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.” (/d. at p. 893.) In Arroyo, the court adopted other language from Sanchez, stating: “The People contend[the]statutory preference for joint trials [embodied in section 1098] trumps a defendant’s statutory right to a speedy trial. It does not. ‘[W]hile the _ preference for joint trial stated in section 1098 .. . serves judicial economy and the convenience of the court and counsel, such a consideration cannot subordinate the defendant’s state constitutional right to a speedy trial without a showing of 10 exceptional circumstances.’ (Sanchez|, supra,| 131 Cal.App.3d [at p.] 893; see also People v. Escarcega (1986) 186 Cal.App.3d 379, 386, fn. 4 [‘We reject the.People’s contention . . . that the desires of the People and codefendantto avoid needless duplication or to obtain an expeditious disposition are relevant factors in determining whetherdefendant’s right to a speedy trial was violated. [Citation.] The law is in fact to the contrary. The preference for a jointtrial ofjointly charged defendants does not constitute good cause to delay one defendant’s trial beyond the time period set forth in... section 1382, subdivision 2’].)” (Arroyo, supra, 119 Cal.App.4th at p. 465.) | The Supreme Court explained in Sutton: “[P]ast decisions of this court makeit clear that the substantial state interests served by 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. [Citations.] And numerous Court of Appeal decisions properly have applied this general principle. [Citations.] Furthermore, the provisions of section 1050.1 also clearly establish that the state interest in permitting jointly charged defendants to betried in single trial generally constitutes good causeto continue a defendant’s trial to enable that defendantto be tried with a codefendant whosetrial properly has been continuedto a date beyond the presumptivestatutory deadline. Accordingly, the decisions in [Sanchez], People v. Escarcega, supra, 186 Cal.App.3d 379, and [Arroyo], are disapproved to the extent they hold or suggest that the state interests served by ajoint trial cannot constitute good cause under section 1382 to continue a codefendant’s trial beyond the presumptive statutory deadline.” (Sutton, supra, 48 Cal.4th at pp. 561-562,first italics in original, fn. omitted.) Turning to the circumstancesbeforeit, the Sutton court concluded:“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, becausethetrial court continued Jackson and Sutton’s trial on a day-to-day basis and the jointtrial ultimately commenced only six days after the 60-day period, the duration ofthe delay in 1] this case clearly was reasonable. Finally, Sutton makes no claim that the short delay in the commencementofthetrial 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 Sutton’s trial to permit him to betried jointly with Jackson and in denying Sutton’s motion under section 1382 to dismiss the charges against him.” (Sutton, supra, 48 Cal.4th at pp. 562-563, italics added.) As the foregoing summary makesclear, Sutton did not involve a defendant who requests or consents to the setting of trial beyond the 60-day period, pursuantto section 1382, subdivision (a)(2)(B). Thus, the application of the 10-day grace period to a jointly charged codefendant whohas not consentedto trial beyond the 60-day period wasnotat issue. (See Sutton, supra, 48 Cal.4th at p. 546[“‘in this case each defendant repeatedly informed thetrial court that he wasnot willing to . . . consent to having his case brought to trial beyond the 60-day period; the trial court, in permitting the matterto trail beyond that period on a day-to-day basis . . . expressly rested its continuance orders on a determination that there was ‘good cause’ for the delay”].) Accordingly, we agree with Smith that Sutton does not address the main issue presented in this case. Sutton does address section 1050.1 and the circumstances in which joinder interests will constitute good cause to continuethetrial of a defendant whosejointly charged codefendant’s trial has been continuedfor good cause. (Sutton, supra, 48 Cal.4th at pp. 558-563, italics added.) But, as noted above, no attempt was made here to show good cause to continue either Smith’s or Sims’s trial beyond the conclusion of Sims’s counsel’s illness. Nojustification was presented for the delay of either Sims’s or Smith’s trial after April 27. Rather, the People seek to justify the continuance beyond April 27 as to Smith solely on joinder grounds. However,in all of the cases in which joinderinterests have been found to outweigh speedytrial rights, some valid justification for delay has been presented—for example, that the continuance wasnecessary to ensure the codefendant’s right to effective assistance of counsel. (See Sutton, supra, 48 Cal.4th at pp. 556-557, 12 562-563 [“trial court correctly found that the circumstance that defendant Jackson’s trial properly was continued beyondthe 60-day period[, while Jackson’s counsel continued to be engaged in an unexpectedly lengthy trial,] constituted a legitimate and appropriate justification for also delaying codefendant Sutton’s trial’’]; Johnson, supra, 26 Cal.3d at p. 570 [noting courts have found good cause for delay caused by defendant’s conduct, delay for defendant’s benefit, and delay arising from unexpectedillness or unavailability of counsel]; Arroyo, supra, 119 Cal.App.4th at pp. 466-467 [defendant’s right to a speedy trial violated when section 1050.1 did not apply, “absolutely no facts [were] presented to the trial court and hence no weighing bythetrial court of the facts and competing interests,” and joinder was sole basis for delay of trial], disapproved on other grounds by Sutton, supra, 48 Cal.4th at p. 562; Greenberger, supra, 219 Cal.App.3d at p. 501, fn. omitted [“if the precipitating cause fortrial delay is justifiable, such as codefendants’ need to adequately preparefortrial, then the section 1098jointtrial mandate constitutes good causeto delaythe trial of an objecting codefendant”]; Hollis v. Superior Court, supra, 165 Cal.App.3d 642 [upholding determination of good causeas to objecting defendant when codefendants sought continuance to adequately prepare for trial]; Sanchez, supra, 131 Cal.App.3d 884, disapproved on other grounds by Sutton, supra, 48 Cal.4th at p. 562; Ferenz v. Superior Court (1942) 53 Cal.App.2d 639.) The People did not demonstrate good cause to delay Smith’s trial beyond April 27. Contrary to the People’s assertion, the Sutton court did not overrule Sanchez and Arroyo. Rather, the court specifically distinguished Sanchez, but noted that it “contained broadlanguage that went beyond the circumstances presented” and disapproved Sanchez and Arroyo “to the extent they hold or suggest that the state interests served by ajoint trial cannot constitute good cause under section 1382 to continue a codefendant’s trial beyond the presumptive statutory deadline.” (Sutton, supra, 48 Cal.4th at pp. 560-562, italics added, fn. omitted.) We do not rely on Sanchez or Arroyo for that now disapproved proposition. We merely cite Sanchez and Arroyo in support of the proposition that there mustbe a valid justification for delay—e.g., to allow the codefendant’s counsel to prepare fortrial—in order for jointtrial interests to constitute 13 good cause to continue the other defendant’s trial as well. Sutton in no way detracts from that proposition. (Sutton, supra, 48 Cal.4th at pp. 556-557, 560-562.) The People point out that there is no indication that the delay adversely affected — Smith’s ability to defend himself and that the delay at issue here was even shorter than that considered in Sutton, The People ignore, however, that these circumstances were only considered relevant to the Sutton court’s analysis after it was determinedthat the engagement of Jackson’s counsel in anothertrial constituted good cause to delay Jackson’s trial. (Sutton, supra, 48 Cal.4th at pp. 556-557, 562-563.) The Sutton court specified that “a numberof factors are relevant to a determination of good cause: (1) the nature and strength ofthejustification 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. [Citations.]” (/d. at p. 546, italics added.) The People cite no authority, and we know of none, suggesting that minimal delay andlack of prejudice justify violating a defendant’ s statutory speedytrial rights when nojustification has been shownfor the delay. In fact, the Sutton court stated: “When the prosecution fails to establish adequate justification for the delay, the circumstance that the delay is not likely to prejudice the defendant’s ability to present a defense doesnot, in itself, constitute good cause to avoid a dismissal under section 1382. [Citation.]” (Ud. at p. 546, fn. 7.) Nor does Sutton suggest that joinder interests alone excuseviolation of a defendant’s statutory speedytrial rights when there is no justification for the underlying delay. Sutton does not addressthis situation. In our view, Sutton only compels a conclusion that the trial court had good cause to continue Smith’s trial to April 27, a conclusion that Smith does not challenge. Accordingly, we proceed to consider whether the 10-day grace periodprovided for codefendant Simsin section 1382, subdivision (a)(2)(B) applies to Smith. This remains a question offirst impression. C. Plain Language of the Statutory Sections Weconcludethat the plain language of section 1382 makes clear that the court erred by applying the statutory 10-day grace period to Smith. The exception to the 60-day rule, provided in section 1382, subdivision (a)(2)(B), is limited to cases when 14 “(tlhe defendant requests or consents to the setting of a trial date beyond the 60-day period.” (Italics added.) The statute further provides: “Whenevera caseis setfortrial beyondthe 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be broughtto trial on the date set fortrial or within 10 days thereafter.” (§ 1382, subd. (a)(2)(B),italics added.) Adopting the People’s interpretation would ignore the Legislature’s use of the word “defendant,” rather than “the defendant, or any jointly charged defendant.” Had the Legislature intended that section 1382, subdivision (a)(2)(B), also apply to an objecting codefendant, it could have said so.’ It did not. Recognizing that their argument is not supported by the plain language of section 1382, the People argue that section 1050.1 operates, on these facts, to extend the 10-day grace period to any jointly charged defendant. The People cite no authority in direct support of their argument. We cannotread the language of section 1050.1 as expansively as urged by the People. 7 The Judicial Council recommendation adopted in SenateBill No. 614 (1959 Reg. Sess.), which added the 10-day grace period now found in section 1382, subdivision (a)(2)(B), did not address the codefendantsituation: “It is recommendedthat the section be amended to provide for dismissal of all cases not broughtto trial within the statutory period (unless good cause is shown) except when the defendant has consentedtothetrial being set beyond the statutory period, and that in the latter situation the case must be dismissed if it is not broughtto trial within 10 days after the last date for trial to which the defendant consented. This will clarify the present rule by (a) establishing that dismissal under Section 1382 may be had even though the defendant has previously consented to a delay beyond the statutory period, (b) fixing 10 days as a reasonable time for trial after expiration of the period consentedto by the defendant, and (c) eliminating the possibility that delays attributable to a defendant which are wholly within the statutory period may prevent dismissal.” (Judicial Council of Cal., Seventeenth Biennial Report (1959) p. 32, italics added; see also Note, Selected 1959 Code Legislation (1959) 34 State Bar J. 581, 717-718 [“[p]reviously, if postponementofa trial was attributable to defendant, his right to a speedy trial was clouded[;] ... [nJow, when defendant secures postponementto a date beyondthestatutory period of § 1382, the case must be dismissed unless defendant is broughtto trial within 10 days after the last date for trial to which he himself has consented”].) 15 Proposition 115, enacted by the voters in 1990, added section 1050.1 which provides: “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,ortrial of one or more defendants, the continuanceshall, upon motion of the prosecuting attorney, constitute good causeto 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.” Nothing in the text of section 1050. 1, or its history, suggests that the electorate intended the 10-day grace period of section 1382 shouldthereby automatically apply to the trial of an objecting codefendant. Nor is such an interpretation required in orderto harmonize the twostatutory sections. The first sentence of section 1050.1 applies only to continuances for “good cause.” Thus, this provision operated here to maintain joinder only during the continuances granted through April 27—thereafter no good cause was shown. Further, the second sentence of section 1050.1 does not require that the 10-day grace period apply to Smith because severance would not otherwise be required due to “unavailability” or “unpreparedness.” First, while the trial court initially considered the possibility of severance when Sims’s counsel wasfirst unavailable, no motion to sever was made. Second, severance would not have been required if trial had commenced on April 27. Sims’s counsel was no longer unavailable or unprepared at that time. Thus, we agree with Smith that sections 1050.1 and 1382 can be harmonized without.applying the 10-day grace period to Smith. As Smith maintains: “Section 1050.1 would have beensatisfied by commencementofjoint trial on April 27, because there was no good causefor further continuance, and there was no need or request to sever the cases.”’ Contrary to the People’s assertion, a statutory preference for jointtrial (§§ 1098, 1050.1) does not necessarily mean that an objecting defendant’s speedytrial rights must give way to his codefendant’s last possible trial date. (See § 1050, subd.(a) 16 {““all proceedings in criminal cases shall be set for trial and heard and determinedat the earliest possible time”]; Arroyo, supra, 119 Cal.App.4th at p. 464 [§ 1050.1 permits continuance of defendant’s trial beyond the 60 days when codefendant’s trial date is continuedfor good cause, but where codefendant’s trial date is not continued for good cause, § 1050.1 “does not provide for the automatic tacking of each newly arraigned codefendant’s statutory time to be broughtto trial”], disapproved on other grounds by Sutton, supra, 48 Cal.4th at p. 562.8) The People essentially argue for automatic tacking of one defendant’s last trial date to that of his or her codefendant. Neither section 1050.1 nor section 1382 provides for such tacking. D.._— Persuasive Authority Supports Our Interpretation In additionto the plain languageofthe statutory provisions, Smith’s argumentis supported by authority that, although notprecisely on point, is instructive. (See Ramos, supra, 146 Cal.App.4th 719.) In Ramos, the Second District Court of Appeal considered whether “good cause,attributed from one jointly charged codefendant to another pursuant to section 1050.1, permit[s] the magistrate to set or continue the preliminary hearing for both defendants beyond the 60 daysprescribed by section 859b[9] in the absence of a personal waiver of the 60-dayrule by both defendants[.]” (/d. at p. 722.) 8 We read Sutton as leaving Arroyo's holding in this respect undisturbed. ° Section 859b provides in relevantpart that “[b]Joth the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waivethat right or good cause for a continuance is found as provided for in Section 1050, the preliminary examination shall be held within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later... .” The statute further provides that “[w]henever the defendantis in custody, the magistrate shall dismiss the complaint if the preliminary examination is set or continued beyond 10 court days from the time ofthe arraignment, plea, or reinstatement . . . and the defendant has remained in custody for 10 or more court days solely on that complaint, unless either . . . [§] (a) [t]he defendant personally waiveshis orherright to preliminary examination within the 10 court days [or] [§]] (b) [t]he prosecution establishes good cause for a continuance beyond the 10-court-day period.” Section 859b also provides: “If the preliminary examinationis set or continued beyond the 10-court-day period, the defendantshall be released pursuant to Section 1318 unless: [{] (1) The defendant requests the setting of continuance of the 17 Maria Ramos and Dolares Gomez werejointly charged as accessories after the fact to murder. The same complaint charged Efrain Ramos with murder. Maria Ramos was arraigned on February 21, 2006, and a preliminary hearing wassetfor all defendants on March 3, 2006. (Ramos, supra, 146 Cal.App.4th at p. 723.) On March 3, 2006, the preliminary hearing was continued to April 6, 2006, with the consent of all three defendants. On April 6, 2006, Efrain Ramos requested a four-week continuance, on the ground that he needed additional time to review discovery. Maria Ramos obj ectedto the continuance and also movedto sever her case. (/d. at p. 724.) The magistrate granted the continuance to May 3, 2006, and denied Maria Ramos’s motion to sever, reasoning that “ander section 1050.1 the good cause found for the continuance as to Efrain Ramos could be used to continue the preliminary hearing as to [Maria] Ramos ... more than 60 days after arraignment.” (Ramos, at p. 724.) Maria Ramos then movedto dismiss the complaintagainst her on thefirst day beyond the 60-day period specified in section 859b, and the motion was denied. Maria Ramosfiled a petition for writ of mandate and the preliminary hearing for all defendants was eventually held on August 28 and 29, 2006. (id. at pp. 724, 726.) On review, Maria Ramosargued that “because she did not personally waive the 60-day timelimit in section 859b, the magistrate was required to dismiss . . . when her preliminary hearing was continued more than 60 days after her arraignment [and that] the magistrate improperly used the joinder provisions in section 1050.1 to create an unauthorized exception to the mandate of section 859b.” (Ramos, supra, preliminary examination beyond the 10-court-day period. [{{] (2) The defendantis charged with a capital offense in a cause where the proof is evident and the presumption great. [{] (3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant. [{] (4) The illness of counsel. [{] (5) The unexpected engagement of counselin a jury trial. [§] (6) Unforeseen conflicts of interest which require appointment ofnew counsel.” Section 859b finally provides: “The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date ofthe arraignment, plea, or reinstatement of criminal proceedings ..., unless the defendant personally waives his or her right to a preliminary examination within the 60 days.” (Italics added.) 18 146 Cal.App.4th at pp. 726-727.) The court agreedthat “inclusion of the defendant’s personal waiver as the only express exception to the 60-day rule suggests the Legislature did not contemplate additional exceptions. [Citation.]” (Ud. at p. 729.) The court rejected the People’s argumentthat section 1050.1 provided a basis for the magistrate to conclude that “the good cause found to continue the preliminary hearing as to Efrain Ramoswasalso applicable to [Maria] Ramos, thereby justifying the continuanceofthe preliminary hearingas to her in order to maintain joinder of the defendants.” (/d. at p. 731.) Becausethe plain language of section 859b provided no good cause exception to the 60-day rule, the court concludedthat “[t]o import a good-cause exception into the | absolute 60-day rule in section 859b, absent the express direction of the Legislature (or the voters by initiative), would constitute an impermissible rewriting ofthe statute. [Citations.]” (Ud. at p. 732.) The Ramos court further rejected the argument that “a defendant who has continuously objected to continuances of the preliminary hearing can be deemedto have personally waived the 60-day rule simply because a codefendant has doneso [because] [a]ny such holding would effectively read the personal waiver requirement out of the statute and eviscerate the 60-day rule. [Citation.]” (Ramos, supra, 146 Cal.App.4th at p. 734.) The court observed that, under the circumstances ofthe case, “as between the People, who could have proceeded against all defendants albeit without the benefits of joinder, and a defendant whohasinsisted on her speedytrial rights, thereis nothing inherently unfair aboutvisiting the consequences of a codefendant’s request to continue a preliminary hearing beyond the 60-day period on the People—who would retain their ability to refile charges against [Maria] Ramosafter the mandatory section 859b dismissal. [Citation.]” (bid.) The court recognized that the second sentence ofsection 1050.1, “expresses the section’s strong preference that joinder be maintained [and] confirms that the unpreparednessor unavailability of a defendant, which constitutes good cause to continue the hearing or trial for that defendant, also permits continuance of the preliminary hearing or trial for another jointly charged defendant... .” (Ramos, supra, 146 Cal.App.4th at 19 p. 735.) However, the court concluded that “severance of [Maria] Ramos’s case was required not because her codefendants were unprepared but because her ownabsolute right to a preliminary hearing within 60 days of arraignment would be violated by a further continuanceof the preliminary hearing date. Or phrased somewhatdifferently, as to [Maria] Ramosthe further extension was necessarily more than ‘a reasonable period of time’in light of her rightto insist on a preliminary hearing within the 60 days mandated by section 859b. Moreover,to interpret the second sentence of section 1050.1 as an unlimited ability of the magistrate to continue proceedings to maintain joinder,as the People suggest, would impermissibly deprive the first sentence ofthe statute of any meaning. [Citation.]” (/bid.) Accordingly, the court held that the superior court should have dismissed the complaint against Maria Ramos. (/d. atpp. 722-723.) Weagree with the People that section 1382 differs from section 859b in several key ways. First, section 1382, subdivision (a)(2)(B), does not include such explicit “personal waiver” language. Second, section 1382, subdivision (a), does include a “good cause” exception. Thus, there is no question that section 1382 would have allowed Smith’s trial to have been continued beyond April 27, as it was before that date, on a showing of good cause. However, there was no attempt to make such showing. Rather, the court relied solely on its view that the 10-day grace period provided by section 1382, subdivision (a)(2)(B), applied to both Smith and Sims. Despite the previously noted distinctions, Ramosis instructive onthis issue of statutory interpretation. We have similar difficulty reading the relevant statutory language, in this case section 1382, to include an additional, but unwritten, exception. (See People v. Standish, supra, 38 Cal.4th at p. 870 [“the presence of express exceptions ordinarily implies that additional exceptions are not contemplated”’]; Ramos, supra, 146 Cal.App.4th at p. 729.) Furthermore, as was the case in Ramos, rejecting the position advocated by the People here would not unfairly burdenthe prosecution in future cases. (Ramos, supra, at p. 734.) In this case, on April 27, the People had a choice—proceed to trial against both defendants that day or sever the cases. Severance of Smith’s case would not have been required because his codefendant was unavailable or unprepared, 20 but because his ownright to a speedytrial would be violated by a further continuance. (See § 1050.1; Ramos, supra, at p. 735.) In re Samano (1995) 31 Cal.App.4th 984 (Samano), provides some support for the People’s argumentthat Sims’s request for a continuance should be imputed to Smith. 19° In Samano, a criminal prosecution involving 33 defendants, the magistrate granted the request of two defendants to continue the preliminary hearing so that they could complete review of voluminous discovery and granted the People’s motion for a continuance, pursuant to section 1050.1, as to all other defendants. (/d. at p. 988.) The magistrate also denied two objecting defendants’ motions to be released on their own recognizance because the preliminary examination had been continued beyondthe 10-court-day limit provided by section 859b. (/bid.) Concluding that section 859b must be harmonized with section 1050.1 in a multiple-defendant case, the majority held that “[t]he request of one properly joined defendant for a continuance of the preliminary examination with good cause shall be deemed a request ofall jointly charged defendants.” (/d. at p. 993.) The Samanocourt construed “defendant”in section 859b, subdivision (b)(1),!! to mean “all jointly charged defendants.” (Samano, supra, 31 Cal.App.4th at pp. 992-993.) The court observed that section 859b does not speak to the situation of codefendants and reasonedthat “it was not the People whoinitiated the instant dilemma; it was the moving codefendants. That codefendants insisted upon a continuance should notinure to the detriment of the People with the nonmoving codefendants as unintendedthird party 10 Samano wasnot cited by the People. Instead, the People rely on cases that do not address the impact on an objecting defendant of a request for continuance made by a jointly-charged codefendant. (See Barsamyan v. Appellate Division ofSuperior Court (2008) 44 Cal.4th 960; People v. Johnson, supra, 26 Cal.3d 557; Townsend v. Superior Court (1975) 15 Cal.3d 774.) None of these cases suggest that Sims’s counsel could give valid consent, pursuant to section 1382, subdivision (a)(2)(B), on behalf of Smith, who wasrepresented by independentcounsel. 11 Section 859b, subdivision (b)(1), provides: “Ifthe preliminary examinationis set or continued beyond the 10-court-day period, the defendant shall be released pursuant to Section 1318 unless: [§] (1) The defendant requests the setting of continuance ofthe preliminary examination beyond the 10-court-day period.” (Italics added.) 2] beneficiaries. The People were ready for the preliminary hearing and wanted to go forward, but just once. Section 859b, subdivision (b) is premised on the People as the initiator of the continuance. The People were not required to make any additional showing of ‘good cause’ to continue the preliminary hearing as to the nonmoving codefendants. Section 1050.1 is the equivalent of ‘good cause.’ ” (Id. at p. 989.) Wecannotreasonably construe “the defendant” in section 1382, subdivision (a)(2)(B), to mean “the defendant, or any jointly charged defendant.” In Samano, “there [was] no question that the goals of a speedy preliminary hearing, on the one hand, and the joinder and bail provisions, on the other hand, [were] in conflict.” (Samano, supra, 31 Cal.App.4th at p. 992.) Here, however, sections 1050.1 and 1382 are not necessarily in conflict. Contrary to the People’s argument, our interpretation does not “require severance or dismissal whenever the automatic 10-day grace period is invoked by one jointly charged defendant’s request for continuance beyond the 60-day period... .” Rather, joinder could have been maintained by proceedingto trial on April 27, or on showing of good cause for a further continuance beyondthat date. The delay in bringing this case to trial cannot in any waybeattributed to Smith. Smith and his counsel were available and preparedfortrial at all times and never waveredin their demandthat'trial take place within the statutory period. We acknowledge that the People may be placed in the difficult circumstance of being required to proceed on a date certain when delay is caused entirely by a jointly charged codefendant, and not by action or inaction attributable to the prosecution. If the Legislature wishes to addressthis situation, it must say so. We concludethatthe trial court erred by denying Smith’s motion to dismiss. II. DISPOSITION The order to show cause, having served its purpose, is discharged, and the petition is granted. Let a peremptory writ of mandate issue directing respondentto vacateits order denying Smith’s motion to dismiss in San Francisco Superior Court case number 207788, entitled People v. Donald Smith et al., and enter a new and different order dismissing the information pending against Smith. To prevent any further delay of the 22 proceedings below,this opinion shall be final as to this court within five (5) court days. (Cal. Rules of Court, rule 8.490(b)(3).) The previously issued stay shall dissolve on issuance of the remittitur. (Cal. Rules of Court, rule 8.490(c).) Bruiniers, J. Weconcur: Jones, P. J. Simons,J. 23 Superior Court of San Francisco City and County, No. 207788, Ksenia Tsenin, Judge. Jeff Adachi, Public Defender for the City and County of San Francisco, Teresa Caffese, Chief Attorney, Doug Welch, Charmaine Yu, and Christopher F. Gauger, Deputy Public Defenders, for Petitioner. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan and Stan Helfman, Supervising Deputy Attorneys General, for Real Party in Interest. 24