Filed 10/30/14 Forsythe v. Superior Court CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JOSHUA NICKOLAUS FORSYTHE,

     Petitioner,

         v.                                                            G050856

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. 30-2014-00748274)
COUNTY,
                                                                       OPINION
     Respondent;

THE PEOPLE OF THE STATE OF
CALIFORNIA,

     Real Party in Interest.



                   Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, John S. Adams, Judge. Petition granted.
                   Chad R. Maddox, for Petitioner.
                   No appearance for Respondent.
              Tony Rackauckas, District Attorney and John R. Maxfield, Deputy District
Attorney, for Real Party in Interest.


THE COURT: *
              On September 29, 2014, both real party in interest and petitioner, Joshua
Nickolaus Forsythe, announced ready for a suppression motion and jury trial on day 10 of
10. When the court denied the motion, it advised the parties that no jurors were available
and continued the trial to the following day. Petitioner filed a motion to dismiss on the
basis that he was denied his statutory right to a speedy trial. The trial court denied the
motion and petitioner sought relief in the appellate division. When the appellate division
also denied relief, petitioner filed a petition for writ of mandate in this court. This court
invited real party in interest to file an informal response to the petition, and real party
advised the court that it does not oppose the petition. The petition is granted.


                                           FACTS


              On April 11, 2014, petitioner, Joshua Nickolaus Forsythe, was arrested for
misdemeanor driving under the influence pursuant to subdivisions (a) and (b) of Vehicle
Code section 23152. On May 13, 2014, a complaint was filed and on June 4, 2014,
Forsythe was arraigned out of custody on the complaint. According to the docket, at the
time of arraignment, Forsythe entered into a general time waiver. At the pretrial on July
8, 2014, Forsythe revoked his time waiver and a jury trial was set for September 17,
2014. The docket noted September 17th was “Day 0 of 10.”
              On September 5, 2014, Forsythe filed a motion to suppress evidence
pursuant to Penal Code section 1538.51, to be heard and considered prior to trial on

*      Before O’Leary, P. J., Ikola, J., and Thompson, J.
1      All further references are to the Penal Code.

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September 17th. On September 15, the People filed a motion and declaration to continue
the suppression motion pursuant to section 1050. According to the declaration, the
deputy district attorney assigned to the case received a rejected subpoena from the
Huntington Beach Police Department because the officer necessary for the hearing was
scheduled for training between September 15, 2014 and September 28, 2014, and
therefore unavailable on September 17, 2014.
              On September 17, 2014, Forsythe announced ready for the motion and jury
trial. The People announced ready for jury trial, but not ready for the motion. According
to the docket, when Forsythe insisted the motion be considered before trial, the court
made a finding of good cause to continue the motion and jury trial to September 29,
2014, and that “09/29/14 will be day 0 of 10.”
              Because Saturday, September 27, 2014, was day 10 of 10, the matter was
called the next court day, Monday, September 29, 2014, and the court considered and
denied the suppression motion. Although both parties had announced ready for jury trial,
the docket states, the court advised the parties that jury selection would commence the
following day. According to the docket, Forsythe advised the court that September 29th
was day 10 of 10, objected to starting trial the following day, and disagreed with a ruling
in a different court that September 29th represented day 0 of 10.
              At 2:38 p.m., the court declared a recess and the court clerk called Jury
Services to determine whether jurors were available. When the court advised the parties
that no jurors were available, the docket indicates Forsythe made a motion for a bench
trial. The People objected to a bench trial and the court denied the motion. Trial was
trailed to the following day September 30, 2014, at which time Forsythe made a motion
to dismiss. The court denied the motion.
              On October 1, 2014, Forsythe filed a petition for writ of mandate in the
appellate division of the superior court complaining he was denied his statutory right to a
speedy trial pursuant to subdivision (a)(3)(B) of section 1382. On October 6, 2014, the

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appellate division denied Forsythe’s petition and he filed a petition for a writ of mandate
in this court.
                 This court advised the People that Forsythe filed a petition seeking a
peremptory writ and invited the People to file an informal response to the merits of the
petition as well as the issuance of a peremptory writ of mandate “in the first instance.”
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
                 The People have advised the court that “After careful examination of this
Court’s order, the petition, the exhibits, and relevant statutes and cases, Real Party in
Interest will not oppose the petition.”
                 “Under section 1382, if an accused is not ‘brought to trial’ within the
prescribed time period—in this case, the 10-day grace period—the court must order the
action dismissed ‘unless good cause to the contrary is shown.’ The burden of showing
good cause is on the prosecution.” (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772,
780-781; Pen. Code, § 1382, subd. (a)(3)(B).) Delay caused by improper court
administration does not constitute good cause. (People v. Johnson (1980) 26 Cal.3d 557,
570.)


                                          DISPOSITION


                 Let a peremptory writ of mandate issue directing the superior court
appellate division to vacate its October 6, 2014 order denying petitioner’s petition for
writ of mandate, and instead issue a new and different order granting the petition and
directing the superior court to vacate its ruling denying petitioner’s motion to dismiss on
September 30, 2014, and enter a new and different order granting the motion. In the
interest of justice, the opinion in this matter is deemed final as to this court forthwith.
(Cal. Rules of Court, rule 8.490(b)(2)(A).)



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