Gill v. Villagomez

140 F.3d 833, 98 Daily Journal DAR 3343, 98 Cal. Daily Op. Serv. 2415, 1998 U.S. App. LEXIS 6498, 1998 WL 149394

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 1998
• Docket: No. 96-17103
• Status: Published

Opinions

Per Curiam Opinion; Concurrence by Judge Reinhardt.

PER CURIAM:

Francis L. Gill appeals the Appellate Division of Guam’s denial of a writ of mandamus compelling dismissal of criminal charges against him for violation of Guam’s speedy trial statute. We conclude that, although mandamus is an appropriate remedy for alleged statutory speedy trial violations, the trial court did not abuse its discretion in denying the motion.

I

In 1991, Gill was indicted in the Superior Court of Guam for conspiracy to steal government land. At the time of his arraignment, he waived his right to a speedy trial and agreed to allow a trial setting beyond the sixty days required by Guam statute. He moved the Superior Court to dismiss the indictment as violative of the Double Jeopardy Clause because a previous trial for conspiracy had included the same charge. The trial court granted Gill’s motion. The government appealed the order to the Appellate Division of the District Court of Guam (“Appellate Division”). The Appellate Division reversed. Gill appealed, and we affirmed the Appellate Division. The mandate was issued by the Appellate Division on October 25,1995 and received by the Superior court on October 30, 1995. On January 10, 1996, a trial judge was assigned. An initial hearing on the return of the mandate was held on February 21, 1996. At that hearing, Gill for the first time expressly demanded a speedy trial. He further asserted that his right to a speedy trial had been violated by the Government’s failure to bring him to trial within sixty days of the return of mandate.

On February 28, 1996, Gill’s motion to recuse the assigned trial judge was granted. Judge Villagomez was assigned the case on March 16, 1996. On April 1, 1996, Judge Villagomez heard argument on the petitioner’s motion to dismiss for lack of a speedy trial, which Judge Villagomez denied from the bench. Gill filed a petition for writ of mandamus with the Appellate Division on April 19, 1996. On October 4, 1996, the Appellate Division denied the writ. The Appellate Division held that the Superior Court’s legal and factual determinations were supported by the record, specifically finding that good cause existed for the delay and that Guam’s speedy trial statute did not provide Gill a remedy. Gill’s timely appeal to this Court followed.

II

We first reject the Government’s argument that mandamus is not a proper remedy, an issue we review de novo. R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, (9th Cir.1997). Under Guam law, a court is authorized to issue a writ of mandamus when (1) the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, and (2) the court in question has abused its discretion. Apusento Garden v. Superior Court, 94 F.3d 1346, 1351 (9th Cir.1996).

Gill has satisfied the first requirement because he does not have a plain, speedy, adequate post-trial remedy for denial of a statutory right to a speedy trial under Guam law. In reviewing an application for writ of mandamus to the Appellate Division, we look to the California standard for mandamus review.¹ Id. Under California law, “the defendant’s proper remedy in this situation is to petition for writ of mandate prior to the commencement of trial.” People v. Wilson, 60 Cal.2d 139, 32 Cal.Rptr. 44, 51, 383 P.2d 452, 459(In Bank). Indeed, if the defendant elects to raise a speedy trial issue on post-trial direct appeal, he or she bears the additional burden of showing that the delay prejudiced the case. People v. Cory, 157 Cal.App.3d 1094, 1098, 204 Cal.Rptr. 117 (Cal.Ct.App.1984). This is a formidable, and in most eases, impossible task. Thus, contrary to the government’s argument, a pretrial writ of mandamus is not only a proper remedy, it is the preferred remedy for denial of a right to a speedy trial.

However, although properly raised, Gill does not satisfy the second Apusento requirement: that the district court abused its discretion. A writ of mandamus compelling dismissal for lack of a speedy trial must issue if it “clearly appears that there was no good cause shown at the hearing” and the trial court had a “clear positive legal duty [to] dismiss the indictment.” Wilson, 32 Cal.Rptr. 44, 383 P.2d 452 (internal citation and quotation marks omitted).

Gill waived his statutory speedy trial rights when he was arraigned. Two subsequent interlocutory appeals followed—one initiated by the government, the other by Gill. Gill did not assert his statutory right to a speedy trial until February 21, 1996. His assertion arguably entitled him to a trial on or before April 22, 1996.² Judge Villagomez denied his motion to dismiss for lack of a speedy trial on April 1, 1996, and Gill filed the writ of mandamus at issue on April 10, 1996. All of these actions occurred before the statutory period expired. Thus, the trial court did not abuse its discretion in denying the motion.

Gill contends that the issuance of the mandate after an appeal automatically triggers the statutory period under Guam law. Thus, he argues, because more than sixty days elapsed after the mandate was issued, his statutory speedy trial rights were violated and he is entitled to dismissal. However, even assuming that the statutory period resumed upon remand, Gill’s unrevoked waiver would preclude his claim.

Further, Guam statutes do not provide for renewal of a right to trial within sixty days of remand from an appeal, vitiating Gill’s claim that a new right arose on remand which the trial court had a “clear positive legal duty” to recognize. Wilson, 32 Cal.Rptr. at 51, 383 P.2d at 459.

Guam’s court calendaring statute provides, in relevant part:

(a)(3) Except as otherwise provided in Subsection (b), the court shall dismiss a criminal action if [t]he trial of a defendant, who is not in custody at the time of his arraignment, has not commenced within sixty (60) days of his arraignment.

(b)(3) A criminal action shall not be dismissed pursuant to Subsection (a) if [g]ood cause is. shown for the failure to commence the trial within the proscribed period.

8 G.C.A. § 80.60.

This statute was derived from a California statute, Cal.Penal Code § 1382. In 1951, section 1382 was amended to provide that the government was required to bring a defendant to trial within sixty days after issuance of a mandate on appeal. However, the Guam legislature choose not to amend the parallel Guam statute and left it without any reference to a speedy trial right on remand.

In the absence of controlling Guam case law, we must construe the Guam speedy trial statute under California law. As a principle of statutory construction, we assume from statutory amendments a purpose to change existing law. In Re Lance W., 37 Cal.3d 873, 210 Cal.Rptr. 631, 640-41, 694 P.2d 744, 753(In Bank). Thus, the fact that California had to amend the statute to provide a speedy trial right on remand indicates the right did not exist under the pre-1951 statute from which Guam law was derived.

A review of California case law construing the pre-1951 version of Cal.Penal Code § 1382 supports this conclusion. The most closely analogous California case on the issue presented in this appeal is Ex Parte Alpine, 203 Cal. 731, 265 P. 947(In Bank). In Alpine, the criminal defendant successfully appealed an adverse jury verdict. More than sixty days passed after remittitur was filed with the superior court before the defendant was retried. Under those circumstances, the California Supreme Court held that § 1382 did not apply to criminal prosecutions commenced after appellate remand. Id. at 949. In so holding, the court distinguished cases in which § 1382 was construed to require a timely trial following a mistrial. See, e.g., In re Begerow, 133 Cal. 349, 65 P. 828(In Bank). Alpine was cited with approval in a subsequent California Supreme Court ease, See People v. Marshall, 209 Cal. 540, 289 P. 629, 631(In Bank), and was not overruled prior to the 1951 amendments to § 1382.

Of additional significance is Gill’s unrevoked waiver and the fact that Gill initiated one of the appeals in this case. Given these facts, coupled with (1) the absence of any express speedy trial right on remand in 8 G.C.A. § 80.60, (2) the principles of statutory construction as applied to the California statute of origin, (3) the failure of the Guam legislature to amend the statute after California modified the statute of origin to apply to remanded cases, and (4) the California Supreme Court’s construction of the preamendment statute of origin, the trial court was under no “clear positive legal duty” to dismiss the criminal charges for violation of Guam’s speedy trial statute. Our resolution of this issue makes it unnecessary for us to consider, pursuant to 8 G.C.A. § 80.60(b)(3), whether good cause existed for the delay.

Gill further claims that his Sixth Amendment right to a speedy trial was violated. However, we cannot reach that claim here. A trial court’s denial of a defendant’s motion to dismiss a trial on Sixth Amendment-as opposed to statutory-grounds is not appealable pretrial. United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978).³

The Appellate Division correctly denied the writ of mandate in this case.⁴

AFFIRMED.

1 . Guam enacted its mandamus provision in 1933 verbatim from the California Code of Civil Procedure. Thus, California cases interpreting the provision are persuasive authority. Apusento, 94 F.3d at 1351.

2 . See 8 G.C.A. § 1.25, Computation of Time. Although the trial date was ultimately set for April 29, which falls outside the statutory period, because Gill consented to the trial date, See 2/28/96 Tr. at 8-9, his right to trial on or before April 22 is deemed waived. See People v. Vigil, 189 Cal. App.2d 478, 11 Cal.Rptr. 319 (Cal.Ct.App. 1961)(where defendant failed to object at the time a cause was set beyond the statutory period, he waived the right to an earlier trial). Therefore, his only viable statutory speedy trial claim is based upon his contention that the 60 day clock started on October 31, 1995.

3 . Even if a Sixth Amendment claim were properly brought pretrial, it would almost certainly be unsuccessful. Under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court articulated four factors to be weighed in determining whether an accused has been deprived of his Sixth Amendment rights: length of delay, reason for delay, whether the right was asserted, and prejudice. In this case, the delay was relatively short, Mr. Gill did not assert his right to a speedy trial prior to April 22, 1996, and there is no evidence that he was prejudiced by the delay. Cf. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (case dismissed on Sixth Amendment grounds where accused was tried eight years after the indictment; accused was available to state at all times; accused made diligent and repeated efforts by motions in state court to secure a prompt trial; in interval, two witnesses died and other potential defense witnesses were unavailable; and police records relevant to the case had been lost or destroyed).

4 . We do not opine as to whether a different factual background, such as the prosecution being solely responsible for the pre-trial appeals, might produce a different result. Because of the potential for confusion on this question, we commend it to the attention of the Guam legislature.