Filed 9/17/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A175410
v. (Solano County
MONTE ADAM, Super. Ct. No. M24-02423)
Defendant and
Appellant.
A jury convicted defendant Monte Adam of battery under
Penal Code 1 section 242. He contends the trial court violated his
statutory right to a speedy trial under section 1382 and should
have granted his motion to dismiss. We agree and reverse the
judgment.
BACKGROUND
On September 12, 2024, the People filed a misdemeanor
complaint against Adam for violating section 242. Adam was
arraigned, he did not waive his right to a speedy trial, and the
last day for trial was October 14, 2024. Trial was set for October
3, 2024.
1 All further statutory references are to the Penal Code
unless otherwise stated.
1
On October 3, 2024, Adam filed a Code of Civil Procedure
section 170.6 disqualification motion, and the case was set for
reassignment. Adam failed to appear the next day for the
reassignment and a bench warrant issued.
On October 15, 2024, after being arrested on the bench
warrant, Adam appeared in-custody and declined to waive his
speedy trial rights. The new last day for trial was announced as
Thursday, November 14, 2024 (November 14). Trial was set to
start on November 7, 2024.
On October 21, 2024, the People filed a motion to continue
the trial under section 1050 because witness Barbara W., who
either witnessed the crime or the events shortly thereafter,
planned to be in New York on vacation through November 12,
2024. The People attached a declaration attesting that Barabara
W. was under subpoena and that she had advised the People on
October 18, 2024, that she would be on vacation until November
12, 2024.
On November 1, 2024, Adam’s counsel filed a motion to
continue the trial within the last day because counsel planned to
be out of office on November 8, 2024.
On November 5, 2024, the case came on for trial
confirmation with Judge Stephen L. Mock, a visiting judge. The
Court asked the People about the basis for their motion to
continue, and the following exchange occurred: “[The People]:
Your Honor, the People are requesting a 1050, one of the third-
party witnesses that saw the event, the attack on the date in
question, is going to be in New York. She would be able to
2
identify the [d]efendant, testify to what happened, and she’s
available after the 12th. [¶] THE COURT: All right. The problem
is that this Court is not able to do a trial next week. The first
week she’d be back for the 20th — 21st. [¶] [Defense Counsel]:
Then, Your Honor, I believe the last day for this trial is the 14th.
[¶] THE COURT: But if I find good cause, I can continue the trial
beyond that date. [¶] [Defense Counsel]: Okay. I understand,
Your Honor.”
The court then announced that it “would find good cause
based on the representations” made in the declarations. Adam’s
counsel argued that there were other courtrooms that may be
able to try the case within the last day and Barbara W. was not a
necessary witness because other witnesses could testify to the
same facts. The prosecutor attempted to respond, but the court
stated that it did not need any more information, and it had
made its ruling. The court set trial for November 21, 2024, with
trial confirmation on November 19, 2024.
On November 15, 2024, Adam filed a motion to dismiss
pursuant to section 1382. On November 19, 2024, the judge
presiding over the trial confirmation hearing, Judge David E.
Powers, confirmed the November 21, 2024, trial and continued
the section 1382 motion to that date for Judge Nisperos to decide
“because she’s the trial judge.”
On November 21, 2024, the Honorable Judge Marlo S.
Nisperos heard and denied the section 1382 motion to dismiss.
At the hearing, the People argued that Adam was not prejudiced
because Adam was out of custody. Adam argued the People’s
3
witness, Barbara W., had returned on November 12, 2024, so
trial could have commenced within the last day, and prejudice
was automatic when a misdemeanor case is continued beyond the
last day. The court stated: “All right. So I’m not going to — I’m
going to deny the 1382 request at this time. You’re citing
decisions that were made by another judicial officer, who is my
peer. I am not an appellate court. I’m not going to overlook my
authority and my ability to overrule a decision made by a peer on
this trial court. That matter is — that issue has been preserved
for appeal. [¶] And so [defense counsel], whatever record you
propose, which I’m not questioning that the record is as you state
it is. But it is not my position to overturn the decision to
relitigate for that purpose. I’m going to deny the 1382.”
Adam’s counsel responded that a section 1050 motion was
distinct from a section 1382 motion, and the court did have
jurisdiction to rule. The court responded, “I did rule. I denied it.”
A jury convicted Adam, and he appealed. After briefing
and argument, the appellate division of the superior court
(appellate division) affirmed the conviction. The appellate
division held that, to establish an abuse of discretion, “[t]here
must be a clear showing of abuse resulting in a miscarriage of
justice[,]” and Adam failed to establish this because he was out of
custody when his case was continued beyond the last day. The
appellate division also affirmed that there was good cause to go
beyond the last day: “Here, [the People’s] subpoenaed material
trial witness was unavailable to appear for jury trial until after
November 12, 2024. Additionally, [Adam’s] counsel was actively
4
engaged in a separate trial. 2 Furthermore, the [trial court] noted,
‘The Court is not able to do a trial next week.’ ”
We transferred the matter from the appellate division.
(Cal. Rules of Court, rule 8.1008.)
DISCUSSION
Without the defendant’s waiver or consent, or a showing of
“good cause to the contrary,” section 1382 requires that the court
dismiss an action not brought to trial within 45 days after the
arraignment or plea in a misdemeanor case when the defendant
is not in custody. (§ 1382, subd. (a)(3).) We review a trial court’s
denial of a section 1382 motion for abuse of discretion. (Baustert
v. Superior Court (2005) 129 Cal.App.4th 1269, 1275.)
Here, Adam argues that Judge Nisperos erred by not
independently determining the section 1382 motion, the court’s
unavailability did not provide good cause to continue his trial
beyond the last day, Barbara W.’s unavailability did not provide
good cause for the continuance, and Adam suffered prejudice
from the court’s failure to dismiss. The People contend that
Adam consented to trial beyond the last day and good cause
existed to continue the case beyond the last day because of
Barabara W.’s unavailability. For the reasons set forth post, we
agree with Adam that the court abused its discretion in denying
2 Adam states that this sentence about his counsel’s
engagement in a separate trial has no support in the record, and
he contends that this sentence was inadvertently included from a
cut-and-paste from a separate decision by the appellate division.
The People do not dispute Adam’s contentions related to this
sentence.
5
his section 1382 motion, good cause did not exist for the
continuance beyond the last day, and Adam suffered prejudice.
First, the trial court abused its discretion in denying the
section 1382 motion on the basis that Judge Mock had already
decided the motion and the trial court was not in a position to
“overturn” that decision. Judge Mock heard the People’s motion
to continue under section 1050, which required a showing of good
cause for a trial continuance. (§ 1050, subds. (e)–(g).) “The text
of section 1050 speaks only to continuances; it is not an
independent source of dismissal authority. It is important to
keep the distinction in mind.” (People v. Brown (2023) 14 Cal.5th
530, 538.) Section 1050 does not govern dismissals for violation
of statutory speedy trial rights or otherwise. (§ 1050, subd. (l)
[“This section is directory only and does not mandate dismissal of
an action by its terms”].) “By clarifying that [section 1050 does]
not independently authorize dismissal for failure to satisfy either
the procedural or substantive requirements [of section 1050], the
Legislature confirmed that trial courts may dismiss a case, or
force a dismissal by denying a continuance, only under the aegis
of some other conferred authority.” (People v. Brown, at p. 543;
see also Mendez v. Superior Court (2008) 162 Cal.App.4th 827,
837 [“Section 1050 deals with calendaring matters, and is
directory only”].)
Section 1382, on the other hand, provides a right to request
dismissal. (People v. Wilson (1963) 60 Cal.2d 139, 147 [right to
move for a dismissal is sole right protected by section 1382].)
Section 1382 requires a two-step procedure. (People v. Wilson, at
6
pp. 146–147.) The defendant must first “object at the time a cause
is set for trial beyond the statutory period[.]” (Id. at p. 146.) The
objection calls the “attention of the trial court to the facts upon
which the objection is founded,” may serve to procure an earlier
trial, and must be made or the defendant will be deemed to have
consented to the continuance. (Id. at p. 147.) Even after an
objection, however, the court does not have a sua sponte duty to
dismiss. (Id. at p. 147.) Instead, the defendant must “move to
dismiss after the expiration of the allowable delay (but before the
beginning of trial) so that if the court decides that the statutory
period has been exceeded, that there has not been good cause for
the delay, and that a proper and timely objection was made, a
futile trial will be avoided.” (Ibid.)
Because section 1050 governs continuances and section
1382 separately governs dismissals, Judge Nisperos erred in
denying Adam’s section 1382 motion on the basis that Judge
Mock had already ruled on the People’s continuance request.
While it is true that a trial judge ordinarily cannot overturn the
order of another trial judge (Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 695), in finding good cause to
grant the section 1050 motion to continue, Judge Mock did not
provide and could not have provided a ruling on Adam’s request
for dismissal, which had to be made after the expiration of the 45-
day period. (People v. Wilson, supra, 60 Cal.2d at p. 147; People
v. Brown, supra, 14 Cal.5th at p. 543.) They were, as Adam
argued, separate motions that required separate determinations
even though each motion required an evaluation of good cause
7
under the respective statutes. (Cf. Mendez v. Superior Court,
supra,162 Cal.App.4th at p. 837 [rejecting defendant’s argument
that court deciding a section 1382 motion could only consider the
evidence of good cause submitted at section 1050 hearing];
Baustert v. Superior Court, supra, 129 Cal.App.4th at p. 1279
[section 1050, a calendar management statute, provides useful
guidelines for courts to use when ruling on motions to continue,
but court must consider relevant case law on good cause under
section 1382 when making good cause determination under
section 1382].)
Next, we conclude that, on this record, the trial court could
only have exercised its discretion by granting the motion to
dismiss. (See Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435,
1448 [directing court to enter order granting motion for leave to
file a second amended cross-complaint in interest of judicial
economy rather than remanding for further proceedings on issue
because record showed there was only one way court could
exercise discretion].) In doing so, we first reject the People’s
argument that Adam requested or consented to a trial
continuance beyond November 14. Adam’s counsel requested a
trial continuance because of her one-day unavailability on
November 8, 2024. However, she undisputedly requested only a
continuance “within the last day.” And when the court
announced it intended to continue the trial beyond the last day
for good cause, Adam’s counsel responded that Barbara W. was
not a necessary witness and “there are other courtrooms that
may be available [ ] to try this case within the last day.” With
8
these statements, counsel specifically argued against — hence
objected to — the court’s decision to continue the trial beyond the
last day.
Here, the People did not show good cause to continue the
trial beyond November 14. Barbara W.’s unavailability was not a
basis for the continuance beyond the last day because she was
available starting on November 13, 2024. The court continued
the trial beyond November 14 because the judge in the trial
department was not available until November 21, 2024. 3 And the
People understandably do not claim that the judge’s absence
provided good cause for the continuance where they failed to
provide any explanation for this absence below. (Sykes v.
Superior (1973) 9 Cal.3d 83, 88–89 [prosecution must make the
good cause showing]; Lewis v. Superior Court (1981) 122
Cal.App.3d 494, 497–499 [reason for judge unavailability crucial
to good cause determination under section 1382 and
unavailability of some judges due to planned judicial training did
not provide good cause where judges could be recalled]; see also
3 Directly after the People informed the court that Barbara
W. would be available “after the 12th,” Judge Mock, the visiting
judge presiding over Department 4 on November 5, 2024, stated,
“The problem is that this Court is not able to do a trial next week.
The first week she’d be back for the 20th — 21st.” A different
judge presided over the trial confirmation hearing in Department
4 on November 19, 2024, and continued the section 1382 motion
for trial judge Nisperos to decide on November 21, 2024. Judge
Nisperos presided over the section 1382 motion and trial in
Department 4 starting on November 21, 2024. The only
reasonable inference from this record is that the sitting trial
judge was unavailable until November 21, 2024.
9
People v. Engram (2010) 50 Cal.4th 1131, 1138, 1163 [when lack
of an available judge or courtroom to timely bring a criminal
defendant to trial is fairly and reasonably attributable to state’s
fault or neglect, that circumstance does not constitute good cause
to delay defendant’s trial under section 1382].)
Finally, Adam suffered prejudice from the court’s erroneous
failure to dismiss. Adam contends that, because this is a
misdemeanor case that does not fall into any of section 1387’s
exceptions to the general rule barring refiling of misdemeanor
cases, the failure to dismiss is prejudicial in that his case could
not have been refiled. The People do not respond to Adam’s
argument. We agree with Adam and the recent well-reasoned
decision of the Appellate Division of the Orange County Superior
Court in People v. Davisbragdon (2023) 94 Cal.App.5th Supp. 1,
7–8. There, the defendant brought an unsuccessful speedy trial
motion under section 1382 and was subsequently convicted of one
misdemeanor at trial. (People v. Davisbragdon, at p. 4.) The
Appellate Division reversed, holding that the erroneous denial of
a speedy trial motion is prejudicial where section 1387 bars
refiling of the misdemeanor charge and the defendant is
thereafter convicted at trial. (Id. at pp. 7–8; see also People v.
Wilson, supra, 60 Cal.2d at p. 153, fn. 5 [persuasive dicta stating
same].) Adam suffered the same prejudice here.
In sum, Adam’s statutory right to a speedy trial under
section 1382 was violated because he properly objected to a
continuance beyond the last day, he was not tried within the
10
timeframe required by section 1382, there was not good cause for
the delay, and he established the requisite prejudice.
DISPOSITION
The judgment is reversed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
People v. Adam (A175410)
11
Trial Court: Solano County Superior Court
Trial Judge: Hons. Marlo S. Nisperos, Stephen L. Mock
Counsel: Elena D’Agustino, Public Defender, and Emily
Hunt, Deputy Public Defender, for Defendant
and Appellant.
Krishna A. Abrams, District Attorney, and
Jennifer A. Wilson, Deputy District Attorney,
for Plaintiff and Respondent.
12