Filed 10/4/13 P. v. Bullington CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057494

v.                                                                       (Super.Ct.No. FVI1102681)

WILLIAM BULLINGTON,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Lorenzo R.

Balderrama and John M. Tomberlin, Judges. Affirmed.

         Jesse W.J. Male and Michelle Rogers, under appointment by the Court of Appeal,

for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.




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                                        INTRODUCTION

          On March 1, 2012, a second amended complaint1 charged defendant and appellant

William Bullington with four counts of felony second degree robbery under Penal Code2

section 211 (counts 1-4). As to each count, the complaint also alleged that the offenses

were serious felonies within the meaning of section 1192.7, subdivision (c); and violent

felonies within the meaning of section 667.5, subdivision (c). Furthermore, the complaint

alleged that defendant was eligible for imprisonment under section 1170, subdivision

(h)(3).

          After a jury trial, on September 28, 2012, the jury convicted defendant of three

counts of robbery (counts 1, 3, 4). As to count 2, the jury was unable to reach a verdict.

          On November 2, 2012, on a motion by the People, the court dismissed count 2.

The trial court imposed a four-year state prison sentence, and awarded defendant credit

for time served of 343 actual days and 51 conduct credits pursuant to section 2033.1.

          On November 9, 2012, defendant filed a timely notice of appeal.

                                   STATEMENT OF FACTS

          A. Factual Background

          Defendant is a 54-year-old Caucasian male, who weighs about 165 pounds and is

five feet 11 inches tall. He owns a white Scion XB, with damage to its rear from being

backed into a pole.



          1   The original complaint was filed on November 28, 2011.

          2   All further statutory references are to the Penal Code unless otherwise indicated.
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       1.     The Buffet (Count 4)

       On September 17, 2011, defendant robbed a buffet restaurant in Hesperia. He

gave a cashier a three-to-four-line note on a sheet of paper. The cashier only read the

portion that said, “give me all the money. I‟ll shoot you.” The cashier never saw a gun

but saw defendant make a gesture with his pocket like he had a gun. The cashier put all

the paper bills from her register into a black bag that defendant was carrying, and then

defendant exited the restaurant. Defendant was wearing a “military color jacket,” a hat,

and reading glasses. The cashier described the robber as Asian when she called 911. A

manager of the restaurant saw a man run out of the restaurant and drive off in a white

smaller boxed car, like a Scion.

       2. The Thrift Store (Count 3)

       On October 14, 2011, defendant robbed a thrift store in Hesperia. Defendant gave

an employee a handwritten note on an envelope and a black bag. Also, the employee got

the impression that defendant had a gun. He was wearing a black jacket, red beanie, and

sunglasses. One employee identified defendant in court as the robber. However, she was

unable to identify defendant in a photographic lineup where she had identified two

individuals as possible suspects. A witness was able to provide a partial Oregon license

plate number to the police and had described the vehicle as a white compact four-door

vehicle. The witness also described the fleeing man as about 30 years old, six feet tall,

with a thin build and longer brown hair.




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       3. The Mexican Restaurant (Count 2)

       Around 3:30 p.m., on November 25, 2011, a man entered a Mexican restaurant in

Hesperia. He handed an employee a piece of paper and a black bag. The man was

wearing a black ski mask, sunglasses, and a light blue hooded jacket with pockets. The

employee could not determine the racial background of the man but “imagined he was a

white guy” based on the skin she could see through the holes in the mask. The employee

later described the man to the police as a thin white person, in his mid 30s with a medium

build, wearing a brown hooded jacket. The employee did not understand what was

written on the paper because she could not read English. The only word the employee

recognized was “money.” The employee summoned her manager and stayed in the back;

she heard English being spoken and the sound of the register opening.

       Based on gestures, the manager thought the man had a gun in his pocket and was

robbing the restaurant. The manager opened the register and put all the bills in the bag.

The manager thought that the man drove away in a white two-door vehicle. Another

witness thought the vehicle was a Honda Fit. The manager later described the robber to

police as an adult male, possibly Hispanic, about five-foot six inches tall.




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        4. The Diner (Count 1)

        Around 8:00 p.m., on November 25, 2011, defendant entered a diner in

Victorville. He placed a ripped piece of paper on the front counter that stated, “this is a

robbery, and I need you to empty out the cash register as fast as you can because I have a

gun in my pocket.” An employee then opened the cash register and put all the bills into a

small black plastic bag that defendant held out with both hands. The employee never saw

a gun, but thought defendant had a gun because of something sticking out of his left

pocket that could have been a real or fake gun. A witness saw someone drive away in a

white hatchback.

        B. Procedural Background

        In the initial complaint filed on November 28, 2011, defendant was charged with a

single robbery charge for the diner incident (count 1). Defendant was arraigned the next

day. On December 7, 2011, defendant was informed that additional charges might be

pending. After discussions with counsel, he agreed that his preliminary hearing would be

timely if completed within 60 days of December 19, 2011.

        Defendant‟s trial counsel was not provided with police reports from the other

cases that the district attorney intended to file against defendant until January 11, 2012.

On that date, defense counsel requested a short continuance. Defendant expressly agreed

that his preliminary hearing would be timely if completed within 60 days of January 25,

2012.




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       On January 25, 2012, the prosecutor indicated a first amended complaint would be

filed adding two new charges of robbery. The People requested a continuance of the

preliminary hearing. Defendant expressly agreed that his preliminary hearing would be

timely if completed within 60 days of February 8, 2012.

       The first amended complaint was filed on February 7, 2012. It added two

additional counts of robbery—one for the incident at the Mexican restaurant and one for

the incident at the thrift shop. On February 8, 2012, defendant was arraigned on the new

complaint. The People extended an offer and defense counsel reported that defendant

wanted time to consider the offer. Defendant then expressly agreed that his preliminary

hearing would be timely if completed within 60 days of February 29, 2012.

       On March 1, 2012, the second amended complaint was filed. It added the fourth

count of robbery for the incident at the buffet. On March 14, 2012, defendant was

arraigned on the new complaint, his counsel requested confirmation of a preliminary

hearing date.

       On March 19, 2012, defense counsel reported that he was ready for the

preliminary hearing and objected to any continuances. The People, however, indicated

that they were not ready. The trial court continued the hearing to April 2, 2012, and

noted that this was “within the current waiver of 60 days beyond February 29, 2012.”

       On March 28, 2012, the People reported a witness would not be available through

April 10, 2012. The prosecutor confirmed that “2/29 plus 60 is the time situation.” The

trial court then continued the hearing to April 16, 2012, and noted that this was “within

the current time waiver of 60 days beyond February 29, 2012.” The minutes prepared for

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that hearing, however, erroneously stated that “Defendant waives his/her right to a

Preliminary Hearing within 10 court days and 60 calendar days under PC869b and

60 days beyond 4/16/2012.”

       On April 16, 2012, defense counsel reported, “We continue to be ready for the

preliminary hearing.” The prosecutor reported that a material witness was out of town,

and the People again requested a continuance. The trial court, relying on the erroneous

minutes, stated, “We do have 60 days beyond April 16th, 2012. What dates would you

like?” Defense counsel responded, “I thought we had a little less than that, but I could be

mistaken. But at any rate, I think the People said they could be ready next week.” After

discussing dates with counsel, the trial court stated to defendant, “Mr. Bullington, due to

the fact the People have a necessary witness who is unavailable, [and] we do have 60

days beyond April 16, 2012, for your preliminary hearing, I‟m going to set it for further

pre-preliminary hearing, April 18th, 2012, this department at 8:30, with the preliminary

hearing scheduled for April 23rd, 2012, also this department at 8:30. You are ordered

back on both those days. That is within the current time waiver.” Neither defense

counsel nor defendant objected or indicated otherwise.

       At the pre-preliminary hearing on April 18, 2012, both parties reported that they

would be ready for the preliminary hearing on April 23, 2012.

       On April 23, 2012, the prosecutor again reported that she was not ready to proceed

because she had only secured 12 out of 13 witnesses. She requested new dates for the

following week. Defendant‟s trial counsel objected, stated he was ready, and reported

that no time waiver would be forthcoming. The trial court stated to defendant, “I‟m not

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going to ask you to waive any further time. We will set it within the previous time

waiver over your objection.” The trial court then set the preliminary hearing for May 3,

2012—outside defendant‟s actual expressed waiver but within the waiver period in the

erroneous minutes. The prosecutor then asked the trial court to confirm “in terms of

time.” The trial court responded, “60 days beyond April 16th, 2012.” Again, neither

defendant nor defense counsel corrected the trial court.

       On May 1, 2012, the trial court had the parties review the “rough minutes” of the

April 16, 2012, proceedings. The court then stated that before the April 16 hearing, “the

waiver was 60 days beyond February 29th. . . . Then it comes up for April 16th, 2012. It

appears Judge Poncin says, „The waiver is April 16th plus 60,‟ but that is not taken from

the defendant himself. [¶] It would appear to me that we are beyond the 60-day waiver

that we have to do this preliminary hearing. So I‟m inclined to dismiss the case unless I

hear any new information or anything else.”

       Another prosecutor then argued that there was an implied waiver because defense

counsel did not object on April 16, and because the error was attributable to the trial court

and not to the People. The trial court responded, “Well, the waiver is what comes from

the defendant‟s mouth, and there was an error on the minutes on March 28th, 2012,

where the People‟s motion to continue was granted, unavailable witness, and the defense

counsel object[ed] to a continuance. [¶] Then when it comes down to the entering by the

clerk, 60 days beyond April 16th, 2012, which is clearly in error when compared with the

transcript for that date, so I‟m going to dismiss the case.”



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       Another prosecutor then interjected, and asserted that case law provided that once

a waiver was provided the statutory remedy ceases to exist and only a good cause

continuance analysis under section 1050 occurs. He also asserted that the error could not

be imputed to the People because it was the trial court‟s error. The trial court then paused

the proceedings to review a case provided by the People, People v. Griffin (1991) 235

Cal.App.3d 1740 (Griffin) (Fourth Dist., Div. Two). Resuming proceedings, the trial

court stated that it had reviewed the transcripts from Apri1 18 and 23, and concluded,

“looking at both of them, there was an implied waiver of the time frame such that it

would have indicated April 16th plus 60 days.”

       The prosecutor then noted that the trial court had informed defendant of the new

dates on the 16th and 23rd. Defendant‟s trial counsel then stated that defendant had not

said anything to the trial court and never stated he was waiving his right to a timely

hearing. Defense counsel further noted that defendant‟s then counsel had indicated that

he believed there was less time, and that the first dates were set within the time frame to

which defendant had agreed. Defense counsel also noted that Griffin concerned trial

deadlines under section 1382 that necessarily include a 10-day trailing period rather than

the set deadline in section 859b. He went on to state that it would be unfair to punish

defendant for the trial court‟s error, and concluded by noting that the People had

remedies available to seek reinstatement of proceedings following a dismissal. The trial

court then repeated its conclusion that an implied waiver existed, and reiterated the

preliminary hearing date was set for May 3, 2012.



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       On the morning of May 3, 2012, the trial court commenced the hearing by stating

that it wanted to provide further reasons for its denial of the motion to dismiss. The court

recited what it thought had occurred and stated, “I did find good cause that there had been

a grace period or an implied waiver of his prelim to the next court date of May 3rd, 2012,

which is today, which is only three days beyond the previously given 60-day time

wavier.” The court then sated that it was relying on Griffin and People v. Love (2005)

132 Cal.App.4th 276, which the trial court described as holding that once a defendant had

waived its speedy preliminary hearing right, the defendant only retained the protection of

the constitutional speedy trial rights. Defendant was then arraigned on the third amended

complaint and defense counsel then confirmed that he wanted to renew the motion to

dismiss. The court sent the case to another department for the preliminary hearing.

       At the commencement of the preliminary hearing, defense counsel noted that the

issue regarding dismissal had already been discussed in the prior department but “in an

abundance of caution” objected and made a motion to dismiss under “section 859(b).”

The trial court noted that it had reviewed the minutes that indicated that the issue of

dismissal had been litigated in the prior department, but did not have a transcript. The

court then denied the motion to dismiss because it was not at liberty to reconsider the

ruling in the previous department. The preliminary hearing then commenced, and

defendant was held to answer on all counts and allegations.

       The following day, on May 4, 2012, the People filed an information that mirrored

the second amended complaint. On May 8, 2012, defendant was arraigned on the

information and plead not guilty to all counts.

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       On May 18, 2012, defendant filed a motion to set aside the information under

section 995. The motion stated that the trial court erroneously relied on Griffin and Love.

The People opposed the motion and asserted that Love, supra, 132 Cal.App.4th 276,

stood for the proposition that once a defendant has provided a waiver under section 859b,

the defendant was no longer protected by the statute. The People also argued that an

implied waiver occurred because of defendant‟s prior wavier, defense counsel‟s

agreement as to dates, and the failure of counsel or defendant to object when the trial

court stated the incorrect dates. On May 25, 2012, the trial court denied the motion

because it believed that there was an implicit waiver. Thereafter, following a discussion

about retention of experts, defendant provided a limited speedy trial waiver by agreeing

his trial would be timely if it began within 60 days of June 12, 2012. On June 12,

defendant extended that agreement to within 60 days of July 27, 2012.

                                       ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have conducted an independent review of the record and find no arguable issues.



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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                 McKINSTER
                                                             J.

We concur:


HOLLENHORST
          Acting P. J.


KING
                         J.




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