Bailon v. Appellate Division (People) (2002)

ARMANDO BAILON, JR., Petitioner, v. THE APPELLATE DIVISION OF THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

[Modification fn. * of opinion (98 Cal.App.4th 1331) on denial of petition for rehearing.]

THE COURT.- fn. †

It is ordered that the opinion filed herein on June 3, 2002, and certified for publication, be modified as follows:

1. On page 9, the first full [98 Cal. App. 4th 1340, advance report, par. 2] paragraph reads: "Here, Bailon (while out of custody) was both arraigned and entered his plea . . . ." The second paragraph reads [98 Cal. App. 4th 1331, advance report, par. 3]: "In any event, the parties are in agreement . . . ."

These two paragraphs should be deleted and replaced with the following paragraph:

"Here, Bailon (while out of custody) was both arraigned and entered his plea to the misdemeanor charge against him on November 7, 2001. He later requested a trial date of December 14. The parties are in agreement that (prior to the continuance to December 26) the last date on which Bailon could be tried was December 24, in the absence of good cause or further consent. fn. 1 (§ 1382, subd. (a)(3); and see Owens v. Superior Court, supra, 28 Cal.3d at p. 246, fn. 6.) Although the proceedings in the trial court were still within the 45-day statutory period, the court and the parties nevertheless referred to December 24 as 10 of 10 rather than 45 of 45. Regardless of the characterization, the point is that December 24 was the last day Bailon could be tried, [99 Cal. App. 4th 815j] and the question presented is this: When the matter was continued to December 26 as "10 of 10" and the "last day" for trial, did the People waive the 10-day grace period afforded them under section 1382?"

2. On page 21, the first full paragraph [98 Cal. App. 4th 1349, advance report, 2d par.] reads: "Significantly, however, if the People had not agreed that December 26 was truly the last day for trial . . . ."

This full paragraph should be deleted.

To the extent that the "request for modification of opinion" is actually a petition for rehearing, that petition is denied. The foregoing does not change the judgment.

FN *. This modification requires movement of text affecting pages 1340-1343 and 1347-1349 of the bound volume report.

FN †. Lillie, P.J., with Woods, J., and Perluss, J.

FN 1. The 45th day after Bailon's November 7 arraignment and plea was actually December 22, but because that day was a Saturday, the following Monday (December 24) was the last day for trial under section 1382. (Owens v. Superior Court, supra, 28 Cal.3d at p. 244, fn. 3; Code Civ. Proc., § 12.)