A trial is “in progress” when the judge overseeing the other trial is available and ready to try the case to conclusion, and the parties are ready to proceed

Hernandez v. Superior Court of City and County of San Francisco (Cal. Ct. App., Sept. 24, 2025, No. A173010) 2025 WL 2726476, at *1

Summary: In Burgos v. Superior Court (2012) 206 Cal.App.4th 817 (Burgos), the Court of Appeal analyzed Penal Code section 1050, subdivision (g)(2) (Section 1050(g)(2)) which  allows a continuance of a criminal trial when the prosecutor assigned to the case has another trial in progress. A trial is “in progress” only when the judge overseeing the other trial is “available and ready to try the case to conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.” The Court affirms the Burgos test and rejects the People’s attempt to eviscerate it.

Background: Hernandez charged with  sex offenses, filed a petition for a writ of mandate to direct respondent San Francisco Superior Court to grant his section 1382 motion to dismiss the information, claiming the trial court erred in granting continuances sought by real party in interest (the People) under Section 1050(g)(2), which provides that “ ‘good cause’ ” for continuing a trial in a case involving specified sex offenses includes the circumstance that “the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court.” Here, the trial court erred in concluding the prosecutor was involved in another trial “in progress” within the meaning of Section 1050(g)(2) at the time of two March 2025 continuances.

In October 2024, petitioner asserted his right to a speedy trial and March 14, 2025 was set as the last day. On March 12, the matter was on for trial before respondent court. Also on for trial was the matter of People v. Libaniel Lopez Perez );  Lopez Perez was also charged with sex offenses within the meaning of section 11165.1, subdivision (a).  Assistant District Attorney (ADA) Sheila Johnson was assigned to both petitioner’s case and the Lopez Perez case.

On March 12, 2025, the same trial court judge, Teresa M. Caffese, was involved in trial scheduling in both the Hernandez matter and the Lopez Perez matter. Judge Caffese first heard the Lopez Perez matter at 1:56 p.m. and assigned it to Judge Linda Colfax in Department 23 for trial. At that time, Judge Caffese commented, “I am sending you to Department 23 before Judge Colfax. She is not available until the end of March.” Judge Caffese also said, “I do need a stipulation, and I will ask for stipulation that you agree for purposes of your statutory speedy trial rights that you agree that your trial has commenced.” The Lopez Perez defendant agreed.

Immediately thereafter, at 2:02 p.m., Judge Caffese heard the Hernandez matter, and the People moved for a continuance on the ground that ADA Johnson was unavailable because she was the prosecutor assigned to the Lopez Perez case. Petitioner objected to a continuance under Section 1050(g)(2) and stated, “I will be moving to dismiss based on speedy trial grounds.” The trial court found good cause under Section 1050(g)(2) to continue petitioner’s trial until March 21.

Prosecution’s Motion to Continue Hernandez Trial

On March 19, 2025, the People filed a motion to continue petitioner’s trial under Section 1050(g)(2) based on ADA Johnson’s continuing involvement in the Lopez Perez case.

Hernandez objected to the motion to continue, arguing that Section 1050(g)(2) did not apply because the district attorney’s office created the conflict and because the judge in the Lopez Perez case was involved in another ongoing trial, so the Lopez Perez case was not “in progress.” On March 21, 2025, the trial court granted the motion.

On April 1, 2025, the People again orally moved to continue; Hernandez again objected and stated that he would be filing a motion to dismiss. The trial court found good cause to continue based on the unavailability of the prosecutor and continued the trial to April 11.

On April 4, 2025, petitioner moved to dismiss under section 1382. On April 11, the trial court granted another motion to continue, finding good cause because the prosecutor was still in trial in front of Judge Colfax. The trial was continued to April 23, with April 25 the last day. The trial court denied petitioner’s motion to dismiss.

On April 21, 2025, petitioner filed a petition for writ of mandate, requesting issuance of a writ directing the trial court to dismiss the information for violation of his statutory speedy trial rights.

Issue: was the  trial of [Lopez Perez] ‘in progress’ on March 12, 2025 where the [Lopez Perez] parties merely met with Judge Colfax on March 12, 2025 ‘to discuss the case and schedule’ with motions in limine scheduled to be filed a week later by March 19, and ‘Judge Colfax was currently in a[nother] jury trial selecting jurors for that case’ estimated to be ‘finished in late March’?”

Legal Background-Right to a Speedy Trial and Continuances for Good Cause

“The right to a speedy trial is a fundamental right guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. The purpose of the speedy trial right is ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’  ‘To implement an accused’s constitutional right to a speedy trial, the Legislature enacted section 1382.’ ” (Burgos, supra, 206 Cal.App.4th at p. 825, 142 Cal.Rptr.3d 133.) Section 1382 provides that, in a felony case, the court shall dismiss the action when a defendant is not brought to trial within 60 days of his or her arraignment on an indictment or information, unless (1) the defendant enters a general waiver of the 60-day trial requirement, (2) the defendant requests or consents (expressly or impliedly) to the setting of a trial date beyond the 60-day period (in which case the defendant shall be brought to trial on the date set for trial or within 10 days thereafter), or (3) “good cause” is shown.’ ” (Burgos, at p. 825, 142 Cal.Rptr.3d 133.)

“Section 1050, which specifies procedures for requests for continuances, provides that a trial court may grant continuances ‘only upon a showing of good cause.’ (§ 1050, subd. (e).) Neither section 1050 nor section 1382 defines ‘good cause’; the determination of whether good cause for a continuance has been shown is typically made by the trial court in the exercise of its discretion based on the totality of the circumstances. Section 1050(g)(2) provides: “For purposes of this section, ‘good cause’ includes, but is not limited to, those cases involving … a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or Section 11165.6 … and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days.”

When is a trial in progress?

Burgos  held that “a trial is ‘in progress’ for the purposes of [S]ection 1050(g)(2) if the case at issue has been called for trial by a judge who is available and ready to try the case to conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.” (Burgos, supra, 206 Cal.App.4th at pp. 835–836, 142 Cal.Rptr.3d 133.)

The trial in the Lopez Perez case was not in progress within the meaning of Section 1050(g)(2) when the continuances were granted on March 12 and 21, 2025. Judge Colfax was not “available and ready to try the [Lopez Perez] case to conclusion” when either of those continuances were granted. The court had committed its resources to the other matter and the court was available to try that case to conclusion.

A court may address “relatively brief matters that may arise in other cases,” while still remaining “in progress” in a trial that it is available to try to conclusion. (Burgos, supra, 206 Cal.App.4th at p. 836 & fn. 13, 142 Cal.Rptr.3d 133.) But trial court calendar management must comply with the law, and it is clear that Section 1050(g)(2) did not apply to the March 12 and March 21 continuances in the present case, where that judge in Department 23 was not available to commit to trying Lopez Perez to conclusion until the end of March, at the earliest.5

The Cour rejected the People’s attempt to broaden that statute by refusing to acquiesce in the use of trial “stacking” to avoid compliance with the “in progress” requirement of Section 1050(g)(2). The trial court erred in denying petitioner’s section 1382 motion to dismiss.6

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