P. v. Engram

1
Filed 8/31/09 P. v. Engram 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Appellant,
v.
TERRION MARCUS ENGRAM,
Defendant and Respondent.
E047015
(Super.Ct.No. RIF125429)
OPINION
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Rod Pacheco, District Attorney, Alan D. Tate, Senior District Attorney, and Kelli
Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
The People appeal from judgment entered following the trial court dismissing the

-- 1 of 16 --

2
case in the interests of justice pursuant to Penal Code section 1385.1 On the last day the
case could be tried, the trial court determined there were no courtrooms available for trial.
The following day the court granted defendant Terrion Engram‟s motion to dismiss under
section 1382.
The People argue the trial court erred in failing to consider the availability of civil
courtrooms, including special civil proceeding courtrooms, for trial of the instant case, as
required under section 1050, subdivision (a).2 The People further contend that the trial
court abused its discretion by failing to find there was good cause to continue defendant‟s
case beyond the section 1382 limitation period.
We conclude, consistent with this court‟s recent decision in People v. Wagner
(2009) 96 Cal.Rptr.3d 850, 852 (Wagner), that the trial court did not abuse its discretion
or commit legal error in dismissing the case pursuant to section 1385 due to the
unavailability of a courtroom and expiration of the limitation period to try the case. We
further conclude the trial court did not abuse its discretion in denying the People‟s request
to continue the trial. The judgment is affirmed.
1. Factual and Procedural Background
Defendant was charged with attempted premeditated murder (§§ 187, subd. (a)
and 664) and first degree burglary (§ 459). During the first trial in this case, the jury
rejected the murder charge but found defendant guilty of burglary. The defendant
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 We refer to section 1050, subdivision (a) in this opinion as section 1050(a).

-- 2 of 16 --

3
appealed the judgment based on instructional error, and this court reversed the judgment.
In July 2007, the case was remanded back to the trial court (case No. E040549). The
burglary charge was retried. In May 2008, the trial court granted a mistrial due to the
jury‟s inability to reach a unanimous verdict. Defendant remained free from custody.
Retrial was continued numerous times, with the parties stipulating the last day for
trial was September 29, 2008. When the case was called for trial on September 29, 2008,
defendant‟s attorney objected to any further delay in trying the case. The court declared,
“I have no more courtrooms. We‟ve been checking and we just don‟t have any
courtrooms and this does appear to be the last day.” Defendant‟s attorney moved for
dismissal of defendant‟s case under section 1382. Defense attorneys for 17 other
defendants in unrelated last-day trial cases (two felony and 16 misdemeanor cases)
likewise moved for dismissal of their last-day cases under section 1382. The court set
defendant‟s dismissal motion, along with the 17 other defendants‟ dismissal motions, for
hearing on the following day.
The prosecutor argued that if the court did not have sufficient resources to try the
cases and had done everything it could to locate courtrooms for trying the cases, then
there was good cause to continue each of the cases for at least one day. The prosecutor
further requested the trial court to consider assigning the cases to juvenile, probate or
family law courtrooms for trial. The prosecutor also requested the court consider
consolidating the “VCDs” (vertical calendar departments) or “shrink somewhat the
number of VCDs to open up the total number of courts available.” In addition, the

-- 3 of 16 --

4
prosecutor suggested having pro tem judges sit on the VCD calendars and have the VCD
judges try the criminal cases in the empty courtrooms.
Citing People v. Cole (2008) 165 Cal.App.4th Supp. 1 (Cole), the court stated that
the lack of available courtrooms for trials of last-day cases did not constitute good cause
for extending the deadline to try the cases. The court concluded there was not good cause
to continue the 18 cases. The court declined to have the criminal cases tried in juvenile,
probate, family law, or guardianship departments because cases handled in those
departments were generally important matters.
With respect to assigning criminal cases for trial in juvenile courtrooms, the trial
court noted that section 1050 authorizes and directs the court “to weigh out how to
allocate it‟s [sic] business in light of the social values that we must consider in
administering a court.” The court concluded that displacing juvenile cases in order to try
criminal cases in the juvenile court “would be an injustice to those children, to their
parents and to society . . . .” The court noted that, furthermore, the juvenile courtrooms
did not have jury boxes.
The trial court refused to assign the criminal trials to probate and family law
courtrooms because those departments dealt with extremely important social issues which
could not be neglected, and probate and some family law matters were handled by
commissioners who could not try cases. Also, family law cases concerned important
issues concerning children and support issues of enormous significance.
With regard to consolidating “VCDs,” the trial court noted that the court had
previously reduced the number of VCD judges, allowing for an additional courtroom.

-- 4 of 16 --

5
The trial court concluded that reducing the number of the VCD judges further would not
benefit the system because the VCDs contributed immensely to reducing the number of
criminal cases by settling the cases. Within one or two weeks the VCD judges settled
about 900 cases. The court believed that without the VCD judges there would likely be
more cases dismissed for failure to bring them to trial timely.
The trial court overruled the prosecutor‟s objection to setting the last-day cases for
hearings on the defendants‟ motions to dismiss due to a lack of courtrooms. The motions
were set for a hearing the following day, September 30, 2008. The next day, the trial
court heard defendant‟s and the other defendants‟ motions to dismiss and incorporated
the parties‟ arguments made the day before. The court ordered each of the 18 cases,
including the instant case, dismissed under section 1382 due to the unavailability of trial
courtrooms. The prosecutor informed the court the People did not intend to refile
defendant‟s case. As a consequence, defendant was released.
2. Criminal Case Precedence
The People argue that under section 1050, subdivision (a), the trial court erred in
dismissing defendant‟s last-day criminal case without considering the availability of all
civil courtrooms, including courtrooms in probate, family law, juvenile, and calendaring
departments (special civil proceedings).
Section 1050(a) states that criminal cases be given precedence over civil matters.
Section 1050(a) provides: “The welfare of the people of the State of California requires
that all proceedings in criminal cases shall be set for trial and heard and determined at the
earliest possible time. To this end, the Legislature finds that the criminal courts are

-- 5 of 16 --

6
becoming increasingly congested with resulting adverse consequences to the welfare of
the people and the defendant. Excessive continuances contribute substantially to this
congestion and cause substantial hardship to victims and other witnesses. Continuances
also lead to longer periods of presentence confinement for those defendants in custody
and the concomitant overcrowding and increased expenses of local jails. It is therefore
recognized that the people, the defendant, and the victims and other witnesses have the
right to an expeditious disposition, and to that end it shall be the duty of all courts and
judicial officers and of all counsel, both for the prosecution and the defense, to expedite
these proceedings to the greatest degree that is consistent with the ends of justice. In
accordance with this policy, criminal cases shall be given precedence over, and set for
trial and heard without regard to the pendency of, any civil matters or proceedings. . . .”
(§ 1050(a); italics added.) Subdivision (l) of section 1050 further provides that section
1050 is “directory only.” (§ 1050(a); see also People v. Flores (2009) 173 Cal.App.4th
Supp. 9, 20 (Flores).)
The People urge this court to clarify the meaning of the language in section
1050(a) referring to “any civil matters or proceedings.” The People assert the trial court
construed section 1050(a) too narrowly, concluding the provision provided precedence to
criminal cases over civil actions only, whereas the People assert the language, “any civil
matters or proceedings” requires the trial court to give criminal cases precedence over not
only civil actions, but also special civil proceedings, such as probate, family law,
juvenile, and calendaring proceedings.

-- 6 of 16 --

7
The court in Cole declined to decide this issue by concluding it did not matter
whether the narrower or broader definition of the section 1050(a) language applied. We
agree, but conclude, as explained in Flores, supra, 173 Cal.App.4th at page Supp. 20, that
the language should be broadly construed as encompassing any proceedings considered
civil in nature, including special civil proceedings.
Furthermore, regardless of whether we adopt the narrow or broad definition of the
phrase, “any civil matters or proceedings,” the record reflects that the trial court
considered assigning the case not only to any available civil court, but also to any special
civil proceeding courtroom, and reasonably concluded that either no courtrooms were
available or it was not in the interests of justice to use the special proceeding courtrooms.
The instant case is similar to Cole, supra, 165 Cal.App.4th Supp. 1 and Flores,
supra, 173 Cal.App.4th Supp. 9,3 and Wagner, supra, 96 Cal.Rptr.3d 852, which both
held that the Riverside County trial court did not abuse its discretion in denying the
People‟s request for a continuance and properly dismissed the criminal cases on the last
day to try the cases due to court congestion. (Cole, supra, 165 Cal.App.4th at pp. Supp.
8-9; Flores, supra, 173 Cal.App.4th at pp. Supp. 24-25; Wagner, supra, 96 Cal.Rptr.3d
852.) Essentially the same circumstances and arguments raised in those cases were raised
3 Both these cases involved misdemeanor charges and were litigated in the
Riverside County Superior Court. The Orange County Superior Court appellate division
decided the Cole appeal, whereas the Riverside County Superior Court appellate division
decided the Flores appeal.

-- 7 of 16 --

8
by the People in the instant case, 4 and were rejected. The only significant differences
between the instant case and Cole and Flores are that the trial court dismissed only two
misdemeanor cases in Cole and one misdemeanor case in Flores, whereas in the instant
case the court dismissed 16 misdemeanor cases and two felony cases, including the
instant case. Also, the instant appeal is brought only as to dismissal of the complaint
against defendant, and has not been consolidated with any appeals of the dismissals of the
other 17 cases.5
Despite these differences, we agree with the rationale and outcome in Cole, supra,
165 Cal.App.4th Supp. 1 and Flores, supra, 173 Cal.App.4th Supp. 9, as we did in our
recent decision, Wagner, supra, 96 Cal.Rptr. 3d at pp. 859-863. In Cole, the trial court
dismissed two misdemeanor cases because the cases were not brought to trial within the
statutory time limits of section 1382. On the last day to try the cases, the court dismissed
4 The People in Wagner raised the additional argument, which was not raised in
the instant case, that the judges conducting exclusively civil cases at a make-shift,
temporary courtroom facility housed in Hawthorne Elementary School, must stop trying
civil cases at the Hawthorne facility and try criminal cases in the courthouse on the
ground criminal trials take precedence over civil trials. (Wagner, supra, 96 Cal.Rptr.3d
at pp. 853-854.) The trial court in Wagner refused to require the Hawthorne judges to try
criminal cases because they were trying civil cases in a temporary use facility, in which
there was insufficient security for criminal trials and the State administrative office of the
courts had assigned the visiting judges to the Hawthorne facility for the specific purpose
of trying civil cases. (Ibid.)
5 As to the propriety of dismissing the other 17 cases, that issue is not before this
court because this appeal has not been consolidated with any other cases, including the
other felony case. Because 16 of the dismissed cases are misdemeanor cases, they
normally must be appealed in the superior court appellate division, rather than in this
court. We have not been provided any information as to whether the People have filed
appeals in the other 17 cases.

-- 8 of 16 --

9
the cases because there were no courtrooms available for trial and no good cause to
continue the matters beyond the statutory time limits. (Cole, supra, 165 Cal.App.4th at p.
Supp. 4.) On appeal, the People raised the same arguments asserted in the instant case.
The People complained that the trial court dismissed the criminal cases without properly
considering the availability of civil courtrooms, including special civil proceeding
courtrooms. (Cole, supra, at pp. Supp. 5, 7-9.)
The Cole court rejected this contention, noting that the trial court had concluded
“that the work done by the family, probate, traffic and juvenile judges was of great
importance to the community and its citizens. Because of the criminal backlog and the
fact that all traditional civil courtrooms were now being devoted to criminal cases, if the
court were to construe „civil‟ to include family law, probate, juvenile and traffic matters,
the departments doing this important work would be completely eliminated. The trial
court found that this approach would be detrimental to the citizens of the community.
The court stressed that the lack of sufficient courtrooms was not a temporary emergency,
but a constant problem which had been growing for years.” (Cole, supra, 165
Cal.App.4th at p. Supp. 8.)
In Cole, supra, 165 Cal.App.4th Supp. 1, as in the instant case, the People argued
that by refusing to consider assigning the criminal cases to special civil proceedings
courtrooms, “the trial court not only committed an error of law by interpreting the term
„civil‟ in an incorrect manner, but also violated the foregoing unambiguous and plain
language of section 1050, subdivision (a).” (Id. at p. Supp. 13.) We disagree.

-- 9 of 16 --

10
Not only is section 1050(a) discretionary in the general sense, but furthermore,
under subdivision (l) of section 1050, it is merely directory. As stated in Cole, supra, 165
Cal.App.4th Supp. 1, “No case construing this subdivision has found it to be binding or
mandatory; all cases have found it directory. While most cases construing this
subdivision have addressed its requirement of good cause for continuances (and found it
directory only), the few which have addressed the precedence of criminal cases have
found it directory, as well.” (Id. at p. 14.) Citing People v. McFarland (1962) 209
Cal.App.2d 772, 777, the Cole court noted that “„The provisions relied upon merely
establish a policy [citation]; are not absolute [citation]; and do not require that criminal
proceedings be given precedence over civil proceedings regardless of the circumstances.
[Citation.]‟” (Cole, supra, 165 Cal.App.4th at p. Supp. 15; italics in original; see also
People v. Osslo (1958) 50 Cal.2d 75, 106 and Wagner, supra, 96 Cal.Rptr.3d at p. 857.)
Whether a particular criminal case is given precedence over a civil matter and is assigned
to a civil courtroom is within the court‟s discretion, “taking into consideration „the
circumstances and the ends of justice. . . .‟” (Flores, supra, 173 Cal.App.4th at p. Supp.
21; Cole, supra, 165 Cal.App.4th at p. Supp. 15; see also People v. Osslo, supra, at p.
106 and Wagner, supra, at p. 857.)
In the instant case, as in Cole, Flores, and Wagner, the trial court provided valid
reasons for not assigning defendant‟s criminal case to a civil or special civil proceeding
courtroom. (Cole, supra, 165 Cal.App.4th at pp. Supp. 5-8; Flores, supra, 173
Cal.App.4th at pp. Supp. 13-15; Wagner, supra, 96 Cal.Rptr. 3d at pp. 853-854.) The
court considered assigning defendant‟s case and the 17 other last-day cases to special

-- 10 of 16 --

11
civil proceeding courtrooms and concluded it was not in the interests of justice to utilize
the special civil proceeding courtrooms for criminal trials.
We conclude, as the court did in Cole, “that the trial court was entitled to exercise,
and did exercise, its discretion in a manner consistent with the policy and objectives of
section 1050, subdivision (a). It considered all relevant circumstances, including the
welfare of the citizens of the State of California. It indicated that separate from its legal
interpretation of the term „civil,‟ its decision was based on its finding that . . . the work
done by the family, probate, traffic, small claims and juvenile courts was of great
importance to the community, and that depriving the community of these remaining
judicial services would be highly detrimental to its citizens. [Fn. omitted.] Because the
policy of criminal case precedence expressed in section 1050, subdivision (a), is based on
the welfare of the citizens of the State of California, this is a valid and relevant
consideration in determining whether a particular criminal case should receive
precedence.” (Cole, supra, 165 Cal.App.4th at p. Supp. 16; see also Flores, supra, 173
Cal.App.4th at p. Supp. 22.)
It is well known that the Riverside County superior courts remain overburdened
and under resourced. In Flores, approximately four months before the instant case was
dismissed, the trial court dismissed the Flores criminal matter for reasons similar to those
in the instant case. In doing so, the Flores court noted that “The record shows the
Riverside Superior Court has already given extraordinary precedence to criminal trials
over traditional civil matters, and still does not have the available [fn. omitted] resources
to try all criminal cases in a timely fashion. [Citation.] The question then becomes

-- 11 of 16 --

12
whether giving additional precedence over both traditional and nontraditional civil
matters would cause injustice.” (Flores, supra, 173 Cal.App.4th at p. Supp. 23.)
The Flores court concluded that the overall situation in the Riverside County
superior courts “remains essentially the same as it did in Cole-criminal trials are still
given priority over traditional civil lawsuits, and almost all traditional civil courtrooms
and judges are only conducting criminal trials. [¶] We therefore disagree with the
District Attorney‟s position that even further precedence must be granted to criminal
matters.” (Flores, supra, 173 Cal.App.4th at p. Supp. 24.) Ultimately the Riverside
County Superior Court‟s “problem of insufficient resources to try criminal cases must be
solved by the Legislature: „. . . . Section 1382 is a creature of the Legislature. It is
therefore incumbent upon the Legislature to provide the financial support necessary to
meet the requirements it sets.‟” (Id. at p. Supp. 21.)
We reject the People‟s assertion that the trial court misunderstood the extent of its
discretion. The record reflects that it considered every possible option, including
assigning the case to special proceeding courtrooms, and concluded that in the interests of
justice dismissal of the case was appropriate. Under such circumstances, “and
considering the balancing of societal interests inherent in section 1050, subdivision (a),
we conclude the trial court did not abuse its discretion by refusing to use remaining
noncriminal resources for [defendant‟s] trial.” (Flores, supra, 173 Cal.App.4th at p.
Supp. 24.)

-- 12 of 16 --

13
3. Continuance of the Trial
The People in this case, as in Cole, Flores, and Wagner, alternatively argue that
the trial court should have granted the People‟s request to continue the trial beyond the
section 1382 statutory limit based on good cause. (Cole, supra, 165 Cal.App.4th at pp.
Supp. 16-17; Flores, supra, 173 Cal.App.4th at pp. Supp. 24-25; Wagner, supra, 96
Cal.Rptr. 3d at pp. 862-863.) Citing People v. Yniquez (1974) 42 Cal.App.3d Supp. 13,
19-20 (Yniquez), the People assert there was good cause to continue the trial based on the
trial court‟s representations that it had complied with section 1050 in attempting to assign
the case to an open courtroom for trial and there were no courtrooms available.
The prosecution has the burden of establishing good cause for not dismissing a
case that has not been tried within the section 1382 limitation period. (Cole, supra, 165
Cal.App.4th at p. Supp. 16.) “What constitutes good cause is a matter within the court‟s
discretion, and its determination will be reversed only if that discretion is abused.”
(Ibid.)
The People‟s reliance on Yniquez, supra, 42 Cal.App.3d Supp. 13 is misplaced.
As noted in Cole, supra, 165 Cal.App.4th Supp. 1, Yniquez is not controlling because
“Yniquez and other similar cases have been questioned insofar as they assume that court
congestion or heavy public defender caseloads constitutes good cause.” (Cole, supra,
165 Cal.App.4th at p. Supp. 17, fn. 13; see also People v. Johnson (1980) 26 Cal.3d 557,
571.)
In Cole, supra, 165 Cal.App.4th Supp. 1, the court rejected the People‟s
contention that the trial court abused its discretion by not continuing the two criminal

-- 13 of 16 --

14
trials due to court congestion, explaining: “[C]hronic court congestion and overcrowding
do not constitute good cause for a continuance under section 1382. [Citations.] [Fn.
omitted.] If it did, criminal defendants could be consistently denied the right to a speedy
trial whenever the state failed to provide adequate court funding to allow criminal
defendants to be brought to trial in a timely manner. [Citation.] Because the state has the
obligation to provide sufficient resources to dispose of the usual court business promptly,
court congestion will not constitute good cause unless the circumstances are exceptional.
[Citation.]” (Cole, supra, 165 Cal.App.4th at p. Supp. 17.)
The People acknowledge this but assert that this is an inflexible rule, which when
applied under the circumstances in the instant case, is unjust because there were
courtrooms available which could have been utilized. The People further argue the trial
court‟s legal error of concluding it was not required to consider assigning the case to
special civil proceeding courtrooms constituted an “exceptional circumstance.” The
People claim this special circumstance, along with court congestion, constituted good
cause for a continuance.
We disagree. We have already concluded the trial court did not abuse its
discretion by not utilizing available noncriminal resources to try defendant‟s case, and the
record shows that the trial court took into consideration assigning the dismissed cases to
special civil proceeding courtrooms and concluded doing so was not in the interests of
justice. There was no error in this regard, and no special circumstance, as defined in
Cole.

-- 14 of 16 --

15
The court in Cole, supra, 165 Cal.App.4th Supp. 1 explained that “Exceptional
circumstances are defined as unique, nonrecurring events which have produced an
inordinate number of cases for court disposition. [Citation.] [¶] The record shows that
the lack of available courtrooms was the result of chronic court congestion, a fact
undisputed by the People. Nothing in the record suggests exceptional circumstances.
While the effect of the congestion (i.e., the two misdemeanor dismissals) may have been
unique, this was merely the inevitable and foreseeable result of the chronic and increasing
court congestion. Therefore, no good cause for a continuance was established.” (Id. at p.
Supp. 17.)
As in Cole, supra, 165 Cal.App.4th Supp. 1, in the instant case the record shows
that the lack of available courtrooms was the result of chronic court congestion. (Id. at p.
Supp. 17.) Cole, supra, and Flores, supra, 173 Cal.App.4th at pages Supp. 1-2 concern
the same county courts as the instant case. The only difference is that the instant case
was dismissed about a year and a half after Cole was dismissed and only three months
after the dismissal in Flores. As noted in Flores, supra, at page Supp. 24, the Riverside
County superior courts continued to suffer from continuing court congestion. (Cole,
supra, 165 Cal.App.4th at p. Supp. 7; Flores, supra, at p. Supp. 24.)
The People claim Cole is distinguishable because that case was dismissed solely
because of court congestion whereas the instant case was dismissed, not only because of
court congestion, but also because of the special circumstance of the trial court perceiving
court congestion when in fact this was not the case. The People argue that in fact
noncriminal courtrooms were available to handle the trial in the instant case. But the trial

-- 15 of 16 --

16
court adequately explained why assigning the case to special proceeding courtrooms was
not in the interests of justice. Nothing in the record suggests exceptional circumstances
in the instant case. The court thus did not abuse its discretion in denying the People‟s
request to continue the trial beyond the section 1382 time limit to try the case.
It is regrettable and troubling that due to a lack of resources the Riverside Superior
Court is dismissing criminal cases, particularly felony cases. Nevertheless, the trial court
is in a better position than this court is to balance the interests of justice under such
circumstances in determining whether dismissing last-day criminal cases, rather than
assigning them to special civil proceeding courtrooms, is in the interests of justice. (See
Wagner, supra, 96 Cal.Rptr.3d at p. 862.) In the instant case the record sufficiently
establishes that there was no abuse of discretion dismissing defendant‟s case and denying
the People‟s request for a continuance beyond the statutory time limit to try the case
under section 1382. (Flores, supra, 173 Cal.App.4th at p. Supp. 25.)
4. Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Hollenhorst
Acting P. J.
s/Miller
J.

-- 16 of 16 --