The People v. Bullington CA4/2 (2013) · DecisionDepot
The People v. Bullington CA4/2
California Court of Appeal Oct 4, 2013 No. E057494Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
1
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
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.
9
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.
10
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.
11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
HOLLENHORST Acting P. J.
KING J.
12
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues.
Issues
Whether the trial court erred in denying the defendant's motion to dismiss the charges based on an alleged violation of the statutory time limit for a preliminary hearing under Penal Code section 859b.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We have conducted an independent review of the record and find no arguable issues.”