People v. Bilbrey

236 Cal. Rptr. 3d 381, 25 Cal. App. 5th 764
California Court of Appeal, 5th District·Decided July 31, 2018·No. A150273; A151401·Published·Cited by 21 cases

Opinion

STEWART, J.

*767A jury found James Samuel Bilbrey guilty of attempted murder (Pen. Code,1 §§ 187/664), aggravated mayhem (§ 205), assault with a deadly weapon (§ 245, subd. (a)(1) ), and battery with serious bodily injury (§ 243, subd. (d).) The jury also found true a knife-use enhancement (§ 12022, subd. (b)(1) ) and a great-bodily-injury enhancement (§ 12022.7, subd. (a) ). The trial court denied Bilbrey's motion for a new trial and sentenced Bilbrey *768to state prison for an aggregate term of 11 years to life. We affirmed the judgment on direct appeal. ( People v. Bilbrey (May 14, 2013, A129236), 2013 WL 1962969 [nonpub. opn.].)

In November 2016, the trial court granted Bilbrey's petition for a writ of habeas corpus, based upon the ineffectiveness of trial counsel, and ordered a new trial. The *385People filed a timely notice of appeal (A150273).

After filing the appeal, the People did not seek to set a trial date or bring the case to trial. Nor did they seek a stay of trial court proceedings. In March 2017, Bilbrey filed a motion to dismiss the information for violation of his speedy trial rights under section 1382. The People opposed, arguing their pending appeal in case A150273 deprived the trial court of jurisdiction to rule on that motion. The trial court granted the motion to dismiss on March 22, 2017. The People filed a timely notice of appeal from the order of dismissal (A151401). In response to the People's subsequent petition for writ of mandate, we stayed the dismissal order pending resolution of the People's appeal from the trial court's habeas ruling.

We granted Bilbrey's unopposed motion to expedite the appeal from the habeas ruling and, on our own motion, consolidated that appeal with the People's appeal from the dismissal motion for purposes of oral argument and decision.

We affirm in part and reverse in part both the order granting Bilbrey's petition for writ of habeas corpus and the order dismissing the case based on the violation of Bilbrey's right to a speedy trial.

BACKGROUND

I.-II.

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People v. Bilbrey, 236 Cal. Rptr. 3d 381, 25 Cal. App. 5th 764 (Cal. Ct. App. 2018).

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