Filed 6/9/20
                       CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                   DIVISION FOUR


 RODRIC DETWON STANLEY,
         Petitioner,
 v.
 THE SUPERIOR COURT OF                       A160151
 CONTRA COSTA COUNTY,
                                             (Contra Costa County
         Respondent;
                                             Super. Ct. No. 5-190571-0)
 THE PEOPLE,
         Real Party in Interest.


       In response to the COVID-19 global pandemic, the Governor of
California and the Chief Justice of the California Supreme Court issued a
series of orders that permit the extension of the time within which state
criminal trials must commence. In this writ proceeding, defendant Rodric
Stanley argues that these orders are unauthorized by statute and offend
separation of powers principles. While we doubt that the orders are
unlawful, we need not engage in an extended analysis of defendant’s
contentions because the severity of the COVID-19 pandemic and the impact it
has had within this state independently support the trial court’s finding of
good cause to continue defendant’s trial under Penal Code section 1382.
                                   BACKGROUND
       In March 2019, the People filed an information charging defendant
with four felony counts of sexual intercourse or sodomy with a child 10 years


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old or younger in violation of Penal Code section 288.7, subdivision (a); and
one count of detention of a minor by a person with a right to custody or
visitation in violation of Penal Code section 278.5. The People further alleged
enhancements for a prior serious felony conviction (Pen. Code, § 667,
subd. (a)(1)), a prior serious and violent felony conviction (Pen. Code, § 667,
subds. (d) & (e), and § 1170.12, subds. (b) & (c)), and a prior prison term
conviction (Pen. Code, § 667.5, subd. (b).)
      A jury trial commenced on August 15, 2019. However, the trial court
declared a mistrial on August 19, 2019, due to the People’s late disclosure of
discovery. The trial court set a new trial for April 20, 2020, and defendant
waived his statutory right to a speedy trial until that date. Pursuant to the
10-day grace period in Penal Code section 1382, subdivision (a)(2)(B), the last
day for defendant’s trial was April 30, 2020.
      On March 4, 2020, Governor Gavin Newsom declared a state of
emergency in response to the global outbreak of COVID-19, a “new disease,
caused by a novel (or new) coronavirus that has not previously been seen in
humans.” (Centers for Disease Control and Prevention, Coronavirus Disease
2019 (COVID-19), Frequently Asked Questions
<https://www.cdc.gov/coronavirus/2019-ncov/faq.html> [as of June 9, 2020].)
On March 16, 2020, the Health Officer of Contra Costa County issued a
“shelter in place” order requiring residents of the county to remain in their
homes except when engaging in essential activities, and to stay at least six
feet apart from other persons when leaving their homes. Three days later,
the Governor issued an executive order requiring all Californians to stay at
home except for limited activities.
      On March 23, 2020, Chief Justice Tani Cantil-Sakauye, in her capacity
as Chairperson of the Judicial Council, issued an emergency statewide order



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pursuant to Government Code section 68115 suspending all jury trials and
continuing them for a period of 60 days. The Chief Justice also extended by
60 days the time period provided for in Penal Code section 1382 for holding a
criminal trial. In so ordering, the Chief Justice explained: “The [Center for
Disease Control], the California Department of Public Health, and local
county health departments have recommended increasingly stringent social
distancing measures of at least six feet between people, and encouraged
vulnerable individuals to avoid public spaces. [¶] Courts cannot comply with
these health restrictions and continue to operate as they have in the past.
Court proceedings require gatherings of court staff, litigants, attorneys,
witnesses, and juries, well in excess of the numbers allowed for gathering
under current executive and health orders. Many court facilities in
California are ill-equipped to effectively allow the social distancing and other
public health requirements required to protect people involved in court
proceedings and prevent the further spread of COVID-19. Even if court
facilities could allow for sufficient social distancing, the closure of schools
means that many court employees, litigants, witnesses, and potential jurors
cannot leave their homes to attend court proceedings because they must stay
home to supervise their children. These restrictions have also made it nearly
impossible for courts to assemble juries.”
      On March 27, 2020, the Governor issued Executive Order N-38-20. The
order suspended any limitations in Government Code section 68115 or any
other provision of law that limited the Judicial Council’s ability to issue
emergency orders or rules, and suspended statutes that may be inconsistent
with rules the Judicial Council may adopt.
      On March 30, 2020, the Chief Justice issued a second statewide
emergency order, authorizing superior courts to issue implementation orders



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that “[e]xtend the time period provided in section 1382 of the Penal Code for
the holding of a criminal trial by no more than 60 days from the last date on
which the statutory deadline otherwise would have expired.” In response, the
presiding judge of the Contra Costa County Superior Court issued an
implementation order extending the time period provided in Penal Code
section 1382 for the holding of a criminal trial by no more than 60 days.
      On April 29, 2020, the Chief Justice issued a third statewide emergency
order, stating: “The 60-day continuance of criminal jury trials and the 60-day
extension of time in which to conduct a criminal trial under Penal Code
section 1382, both of which I first authorized in my order of March 23, 2020
are to be extended an additional 30 days. The total extension of 90 days shall
be calculated from the last date on which the trial initially could have been
conducted under Penal Code section 1382.”
      On May 4, 2020, defendant filed a motion to dismiss, arguing the
extension of his trial date violated his right to a speedy trial. The trial court
denied the motion. The court explained that the Chief Justice’s orders were
“lawful and valid extensions under the states of emergency and public health
crisis.” In addition, the court determined there was good cause under Penal
Code section 1382, subdivision (a) to extend the trial date. The court set
defendant’s jury trial for July 13, 2020, and stated the last day for the start of
trial under Penal Code section 1382 is July 29, 2020.
      Defendant has challenged the trial court’s order by filing a petition for
writ of mandate and prohibition with this court. We requested and received a
preliminary opposition from the Attorney General and a reply from
defendant.




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                                DISCUSSION
      Defendant’s principal argument is that the Governor’s executive order
and the Chief Justice’s statewide emergency orders, which effectively
continued the statutory last day for defendant’s trial by 90 days, are
unauthorized by statute and violate separation of powers principles.
Although we question the merit of his contentions,1 this petition may be
resolved on a much simpler basis.
      Penal Code section 1382 provides that an action shall be dismissed if
trial is not commenced within the statutory time limits “unless good cause to
the contrary is shown.” (Pen. Code, § 1382, subd. (a).) “The cases recognize
that, as a general matter, a trial court ‘has broad discretion to determine
whether good cause exists to grant a continuance of the trial’ [citation], and
that, in reviewing a trial court’s good-cause determination, an appellate court
applies an ‘abuse of discretion’ standard.” (People v. Sutton (2010) 48 Cal.4th
533, 546.) “[I]n making its good-cause determination, a trial court must
consider all of the relevant circumstances of the particular case, ‘applying
principles of common sense to the totality of circumstances.’ ” (Id. at p. 546.)


      1
       The Governor’s executive order cites various provisions of the
Emergency Services Act (Gov. Code, § 8550 et seq.), including Government
Code section 8627. Government Code section 8627 broadly vests the
Governor during a state of emergency with “complete authority over all
agencies of the state government” and authorizes the Governor to
“promulgate, issue, and enforce such orders and regulations as he deems
necessary.”
      Government Code section 68115 vests the Chief Justice with authority
to amend various court procedures in emergency situations, including an
“epidemic.” The statute authorizes the Chief Justice to “[e]xtend the time
period provided in Section 1382 of the Penal Code within which the trial
must be held by not more than 30 days.” (Gov. Code, § 68115, subd. (a)(10).)
The Governor’s March 27, 2020 executive order suspended any limitations in
Government Code section 68115.

                                        5
      Health quarantines to prevent the spread of infectious diseases have
long been recognized as good cause for continuing a trial date. In In re
Venable (1927) 86 Cal.App. 585, the appellate court upheld the continuation
of trial beyond the statutory limit when from the “first to the middle of
September,” an “epidemic of infantile paralysis was prevalent in the town
wherein the sessions of the justice’s court were held, and for that reason no
juries were called during that period.” (Id. at p. 587.) More recently, in
People v. Tucker (2011) 196 Cal.App.4th 1313, the court upheld a one-week
delay to commence a trial when the defendant was in custody at a
correctional facility that was under quarantine because a prisoner had
contracted the H1N1 flu virus. (Id. at pp. 1315, 1318.) “A contrary holding
would require trial court personnel, jurors, and witnesses to be exposed to
debilitating and perhaps life threatening illness. Public health concerns
trump the right to a speedy trial.” (Id at p. 1314.)
      Although the 90-day continuance here is far longer than the
continuances in Venable and Tucker, the COVID-19 pandemic is of such
severity as to justify a continuance of this length. Despite state and local
shelter-in-place orders throughout the country, including in California and
Contra Costa County, according to the Center for Disease Control there have
been almost two million cases of COVID-19 in the country and over 110,000
deaths caused by the virus. California itself has seen nearly 130,000 cases
and over 4,600 deaths. (Centers for Disease Control and Prevention,
Coronavirus Disease 2019 (COVID-19), Cases in the U.S.
<https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html>
[as of June 9, 2020].) As the Chief Justice explained in her most recent
emergency order: “[C]ourts are clearly places of high risk during this
pandemic because they require gatherings of judicial officers, court staff,



                                        6
litigants, attorneys, witnesses, defendants, law enforcement, and juries—well
in excess of the numbers allowed for gathering under current executive and
health orders.” Under these circumstances, the trial court unquestionably
was justified in finding that the COVID-19 pandemic constitutes good cause
to continue defendant’s trial until July 13, 2020, with a statutory deadline of
July 29. Given the grave risks to court personnel, jurors, attorneys, and the
defendant himself that would be created by proceeding in accordance with
the normal timeline, any other conclusion would have been unreasonable in
the extreme. While we acknowledge the unfortunate hardship to the
defendant from this delay, neither the prosecution nor the court are
responsible for the emergency that has overwhelmed the nation and much of
the world, and at this time, “[p]ublic health concerns trump the right to a
speedy trial.” (People v. Tucker, supra, 196 Cal.App.4th at p. 1314.)
      We reject defendant’s contention that the continuance has violated his
constitutional right to access the courts and to due process. (U.S. Const.,
1st Amend.; Cal. Const., art. I, § 3.) Defendant has not been denied access to
the courts, as reflected by the very consideration of his speedy trial motion.
His trial has only been continued, as necessitated by the current public
health crisis. And his due process rights have not been violated due to his
prolonged pretrial detention during the pandemic. The government “may
permissibly detain a person suspected of committing a crime prior to a formal
adjudication of guilt.” (Bell v. Wolfish (1979) 441 U.S. 520, 534.) We note
that defendant has not alleged that the conditions of his confinement pose a
particular health risk to him that would raise constitutional issues.
                                DISPOSITION
      The petition for writ of mandate and prohibition is denied.




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                                _________________________
                                POLLAK, P. J.


WE CONCUR:


_________________________
TUCHER, J.


_________________________
BROWN, J.




A160151



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Trial Court:                                Contra Costa County Superior Court

Trial judge:                                Honorable Anita L. Santos

Counsel for petitioner:                     Robin Lipetzky, Public Defender
                                            Diana Garrido, Nicolas Billings, and
                                            Brandon Li, Deputy Public Defenders

Counsel for respondent:                     No appearance

Counsel for real parties in interest:       Xavier Becerra
                                            Attorney General of California
                                            Jeffrey M. Laurence
                                            Senior Assistant Attorney General
                                            Seth K. Schalit
                                            Supervising Deputy Attorney General
                                            Catherine A. Rivlin
                                            Supervising Deputy Attorney General




A160151



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