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Name: People v. Bilbrey
Case #: A150273
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 07/31/2018

In the absence of a stay granted by either the trial court or the appellate court, the trial court retains jurisdiction to entertain a motion to dismiss on speedy trial grounds even while the People appealed the order granting a new trial as habeas corpus relief. This was a People’s appeal of a grant of the defendant’s petition for writ of habeas corpus. The petition alleged ineffective assistance of counsel at trial, and for relief the trial court granted a new trial. The People appealed the grant of a new trial, but did not seek to set a trial date or bring the case to trial, and did not seek a stay of trial court proceedings. After 60 days had elapsed from the grant of the habeas corpus relief, the defendant filed a motion to dismiss the information for violation of his speedy trial rights under Penal Code section 1382, which the trial court granted. The People also appealed that dismissal, and the appeals were consolidated. The People argued that its appeal from the order granted the petition for writ of habeas corpus divested the trial court from ruling on the motion to dismiss, because the motion was a matter related to, embraced by, or affected by the appeal. The People also argued they were not required to seek a stay pending appeal, because the trial court effectively ordered him discharged or released. And the People argued that the dismissal was improper because the appealed habeas order was not final, and the pending appeal constituted good cause to delay the retrial beyond the 60-day deadline. Held: The Court of Appeal affirmed the order granting defendant’s petition for writ of habeas corpus and affirmed the order dismissing the case based on the violation of the defendant’s right to a speedy trial. The general rule is that a filing of a notice of appeal vests jurisdiction in the appellate court until the appeal has been determined and a remittitur is issued, and the trial court is divested of jurisdiction over anything affecting the judgment. Jurisdiction survives, however, where provided by statute. The People’s right to appeal in a criminal matter is strictly limited by statute. An examination of the statutes governing both direct appeals and appeals by the People from habeas orders favorable to defendants reveals a legislative intent that the party prevailing in the trial court should able to enjoy the benefits of its favorable trial court disposition during the pendency of the appeal, subject to certain limitations. Under section 1506, on appeal from a habeas order that grants to the defendant relief other than a discharge or release from custody, the trial or appellate court may, on application by the People, in its discretion and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter. Finding no precedent directly on point, the Court of Appeal concluded that section 1506 operates to serve as an exception to the general rule regarding the divesting of the trial court’s jurisdiction while an appeal is pending, unless the People seek and are granted a stay of the habeas order. Because no stay was sought or granted here, the trial court had jurisdiction to execute a habeas order despite the appeal that was pending. To conclude otherwise would render surplusage language in section 1506 that expressly allows the People to seek a stay and the court to grant one. Neither was the order granting habeas relief one that discharged or released the defendant from custody. It simply granted him a new trial. In fact, he remained in custody the entire time.

Section 1382’s requirement that the defendant be retried within 60 days was not tolled by the People’s appeal from the order granting the petition for habeas corpus. Under section 1382, the 60-day period runs from the date a mistrial was granted, from the date of an order granting a new trial from which an appeal is not taken, or from the date the remittitur is filed from an appeal from the superior court. But if the new trial is the result of the issuance of a writ or order which, in effect grants a new trial, as in this case, the time period runs from the date the notice of the writ or order is filed in the trial court and served upon the prosecuting attorney.

The People bear the burden to seek a stay by demonstrating good cause in a motion or application for a stay prior to the expiration of the 60-day speedy trial deadline. Having failed to seek a stay pending appeal or to show good cause for a stay, the People had no basis for complaining that the statutory period for bringing the case to trial was not tolled, and as a result their further failure to bring the case to trial within the statutory period required the trial court to dismiss the case.