P. v.
Filed 7/1/13 P. v. Jackson CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Shasta)
----
>
THE PEOPLE, Plaintiff and Respondent, v. CLAUDE JONES JACKSON, Defendant and Appellant. | C072159 (Super. Ct. No. 12F2433) |
filed an opening brief that sets forth the facts of the case and asks this
court to review the record and determine whether there are any
on appeal. ( ADDIN BA xc <@cs> xl 36 s
FDQIOR000001 xhfl Rep xpl 1 l "
v. Wende (1979) 25 Cal.3d 436.)
Defendant filed a supplemental brief
contending his right to a speedy trial
was violated and complaining about his conditions of confinement. We address these issues, in addition to
undertaking a review of the record as required by ADDIN
BA xc <@$cs> xl 5 s FDQIOR000001 Wende,
and affirm the judgment.
BACKGROUND
Defendant and his two brothers, Cary
and Paul, lived in the same mobile home park in Shasta County.
had all lived together until early April 2012, when Cary moved into his own trailer.
On the evening of April
10, 2012, defendant
visited one of his neighbors and obtained some information that upset him. Several hours later, he went to Cary’s trailer “to confront him on something
[he] heard he had said in the trailer park.â€
By this time, defendant had consumed six to eight vodka drinks over the
course of the evening.
Defendant pounded on Cary’s door and burst into the trailer. Cary described defendant as being agitated,
extremely intoxicated, and holding two kitchen knives in his hands. Defendant approached Cary, stuck a knife into each side of his neck,
and accused Cary of telling other residents in the trailer
park that Cary did not allow defendant to visit Cary’s children when they were younger because Cary did not trust defendant. Cary denied the allegation and defendant began
pushing him down the hallway. Defendant
told Cary, “[Y]ou’re going to die tonight,†and
threatened to shove one knife down his throat and the other in his heart. Defendant then punched Cary in the face and pushed him, causing him to
fall. Defendant stood over him and
stabbed him in the stomach.
Defendant then told Cary to go get his gun and shoot him, and he
would stab Cary, and they would both die. To make an excuse to leave the house without
further incident, Cary lied and said the gun was in the car, not
in the house. Cary took the opportunity to escape, ran to his
car and drove to the house of a friend.
He then contacted the manager of the trailer park to alert her as to
what happened, who in turn called the police and an ambulance. Cary sustained three superficial stab wounds to
each side of his neck and a stab wound to the abdomen approximately two inches
deep.
Defendant claimed that he had
carried the two kitchen knives in his belt when he went to Cary’s house and brought them out only after Cary denied his accusations. He further stated that he had allowed Cary to leave because he knew Cary kept a gun in his home and he wanted to use
it to commit suicide.
Trial initially began on July
17, 2012, but,
prior to the second day of trial, defendant fell and injured his back. Based on a nurse practitioner’s testimony
about defendant’s medical condition and inability to sit in the courtroom for
trial, the trial court declared a mistrial.
On July 20, 2012, defendant was still unable to attend court
due to his injury. Despite defendant’s
lack of time waiver, the court found his medical condition and inability to
attend court good cause to set the trial date for August 7, 2012. On August
3, 2012, the trial
court denied defendant’s motion to dismiss for lack of a speedy trial.
Trial proceeded as scheduled on August
7, 2012, after
which a jury found defendant guilty of
with a deadly weapon ( ADDIN BA xc <@st> xl 30 s
FDQIOR000002 xpl 1 l "Pen. Code.
§ 245, subd. (a)(a)" Pen. Code. § 245, subd. (a)(1)),
name="_ftnref2" title="">[2] residential burglary ( ADDIN BA xc <@osdv> xl 5 s
FDQIOR000013 xpl 1 l "§ 459"
§ 459), and making criminal threats ( ADDIN BA xc <@osdv> xl 5 s
FDQIOR000014 xpl 1 l "§ 422"
§ 422).
The jury found defendant used a deadly weapon to commit the burglary and
make the threats but the prosecution dismissed the enhancement due to an error
in the jury instructions. The jury found
the great bodily injury allegation not true.
The trial court sentenced defendant
to the upper term of six years for the burglary and imposed but stayed
sentences on the other two counts pursuant to ADDIN
BA xc <@osdv> xl 11 s FDQIOR000015 l "section 654" section 654.
The trial court ordered defendant to pay a $1,440 restitution fine and
awarded him 309 days of presentence custody credit.
Defendant appeals.
DISCUSSION
I
Defendant filed a motion in the
trial court to dismiss the charges pursuant to ADDIN
BA xc <@osdv> xl 12 s FDQIOR000016 l "section 1382" section 1382 for failure to provide him with
a speedy trial. He argued that, after
the July 18, 2012,
mistrial, the trial court erred in resetting the matter for trial beyond a
10-day grace period to August 7, 2012. The
trial court denied the motion, finding defendant’s physical condition justified
the delay and extended the time to try the matter. Defendant contends this was error. He is wrong.
“[ ADDIN BA xc <@st> xl 18 s
FDQIOR000003 xpl 1 l "Penal Code
section" Penal Code section] 1382, which interprets
the state constitutional right to a speedy trial (see ADDIN
BA xc <@con> xl 25 s FDQIOR000004 xpl 1 l "Cal. Const., art. I, § 15" Cal. Const., art. I, § 15), provides that
absent a showing of good cause, a defendant accused of a felony is entitled to
a dismissal of the charges against him if he is not brought to trial within 60
days of the filing of the information.â€
(
ADDIN BA xc <@cs> xl 43 s FDQIOR000005 xhfl Rep xpl 1 l "People v. Johnson
People v. Johnson (1980) 26
Cal.3d 557, 561.) A defendant is brought
to trial under ADDIN BA xc <@$osdv> xl 12 s
FDQIOR000016 section 1382 when the court has “committed
its resources to the trial, and the parties must be ready to proceed and a
panel of prospective jurors must be summoned and sworn.†( ADDIN BA xc <@cs> xl 54 s
FDQIOR000006 xhfl Rep xpl 1 l "Rhinehart
v. Municipal Court
35 Cal.3d 772, 780, fn. omitted.)
Here, a panel of prospective jurors
was summoned and sworn and jury selection commenced within the 60-day
period. Thus, defendant was brought to
trial within the proscribed time. The
order granting a mistrial as a result of defendant’s back injury commenced a
new 60-day period for retrial. ( ADDIN BA xc <@osdv> xl 20 s
FDQIOR000017 xpl 1 l "§ 1382,
subd. (a)(2)" § 1382, subd. (a)(2); ADDIN
BA xc <@cs> xl 44 s FDQIOR000007 xhfl Rep xpl 1 l "People v.
Tahtinen
Cal.2d 127" People
v. Tahtinen (1958) 50 Cal.2d 127, 131-132.)
In any event, dismissal pursuant to ADDIN
BA xc <@$osdv> xl 12 s FDQIOR000016 section 1382 is warranted only when there is
no good cause for the delay. ( ADDIN BA xc <@$osdv> xl 6 s
FDQIOR000016 xpl 1 § 1382.)
“What constitutes good cause for the delay of a criminal trial is a
matter that lies within the discretion of the trial court. [Citations.]â€
(
ADDIN BA xc <@$cs> xl 44 s FDQIOR000005 xhfl Rep xpl 1 People v Johnson, supra, 26 Cal.3d at
p. 570.) “We review a decision to grant
continuances under ADDIN
BA xc <@$osdv> xl 12 s FDQIOR000016 section 1382 for an abuse of
discretion. [Citation.]†( ADDIN BA xc <@cs> xl 42 s
FDQIOR000008 xhfl Rep xpl 1 l "People v.
Memro
Cal.4th 786" People v. Memro (1995) 11 Cal.4th
786, 852.)
The trial court found defendant’s
unexpected medical condition rendering him unable to attend trial to be good
cause. We find no abuse of
discretion. Courts
generally agree that good cause includes:
(1) delay which results from defendant’s conduct; (2) delay that
benefits defendant; and (3) delay which arises from unforeseen circumstances,
such as unexpected illness or unavailability of counsel or witnesses. ( ADDIN BA xc <@$cs> xl 45 s
FDQIOR000005 xhfl Rep xpl 1 People v. Johnson, supra, 26 Cal.3d at p. 570.)
II
Defendant also contends his
to a speedy trial was violated when his first trial was
commenced on July 17, 2012, because that date was 96 days from his
arraignment. Defendant, however,
forfeited this claim by failing to pursue it in the trial court. ( ADDIN BA xc <@cs> xl 46 s
FDQIOR000009 xhfl Rep xpl 1 l "People v.
Wilson
Cal.2d 139" People v. Wilson (1963) 60 Cal.2d
139, 146-148.)
The right to a speedy trial will be
deemed forfeited unless the defendant both objects to the date set and
thereafter files a timely motion to dismiss in the trial court prior to the
commencement of trial. ( ADDIN BA xc <@$cs> xl 44 s
FDQIOR000009 xhfl Rep xpl 1 People v. Wilson, supra,
60 Cal.2d at p. 146.) These two
requirements serve different purposes.
Absent an objection, defendant is presumed to consent. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) It is not sufficient to object; the defendant
must also move to dismiss before the court can order dismissal. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at p. 147.) “ ‘It is not the policy of the law to permit
a person thus to keep his silence, take his chance on getting a favorable
verdict and, if he loses, at some later time (perhaps after the statute of
limitations has run) come in and void the judgment by raising a point which if
timely raised would have allowed the filing of a new information before the
running of the statute and while the state’s witnesses were still
available.’ . . . [Citations.]â€
(
ADDIN BA xc <@$id> xl 18 s ID xhfl Rep xpl 1 Id. at pp. 147-148.)
III
Finally, defendant complains about
the conditions of his confinement
and violations of the ADDIN
BA xc <@st> xl 67 s FDQIOR000010 l "Americans with Disabilities Act of 1990 (42 U.S.C. §
12101 et seq.)" Americans with Disabilities Act of 1990 (42
U.S.C. § 12101 et seq.). While he claims
these violations contributed to the injury which required the mistrial and
subsequent retrial, defendant fails to establish how the alleged facts, if
true, affect the validity of the judgment from which he now appeals. (Cf.
ADDIN BA xc <@cs> xl 50 s
FDQIOR000011 xhfl Rep xpl 1 l "
v. Jenkins (2000) 22 Cal.4th 900, 1001-1003.) Consequently, we decline to consider them.
IV
Having also undertaken an
examination of the entire record, we find no arguable error that would result
in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Because defendant and his brothers
have the same surname, we use their first names to avoid confusion.
name="_ftn2" title="">[2] Undesignated statutory references are
to the ADDIN BA xc <@ost> xl 10 s
FDQIOR000012 l "Penal
Code" Penal Code.
