Court of Appeal, First Appellate District Court of Appeal, First Appellate District

Charles D. Johnson, Clerk/Executive Officer Charles D. Johnson, Clerk/Executive Officer

Electronically RECEIVED on 11/2/2022 at 12:12:27 AM Electronically FILED on 11/2/2022 by R. Neeley, Deputy Clerk

CASE #: A166474, Div: 1

court of appeal of the state of california

first appellate district

Miguel Angel Estrada,

Petitioner,
v. Superior Court No. 21008360
San Francisco Superior Court,
Respondent;
People of the State of California,
Real Party in Interest.

petition for a writ of mandate or prohibition

after denial of Motion to Dismiss for Violation of Right to Speedy Trial

by Hon. Christopher C. Hite

stay of jury trial requested

Jury trial call on November 28, 2022 (unless advanced sooner)
Hon. Christopher C. Hite, department 22, tel. (415) 551 0322

Manohar Raju, Public Defender

Matt Gonzalez, Chief Attorney
Carmen Aguirre, sbn 224759
Oliver Kroll, sbn 295333
oliver.kroll@sfgov.org
555 Seventh St
San Francisco, ca 94103
(415) 575 8831

Attorneys for Petitioner

 question presented

If a criminal case is not tried within the deadline established by Penal

Code section 1382, it must be dismissed unless there is “good cause” for the
delay. (Pen. Code, § 1382, subd. (a)(2).) A shortage of trial courtrooms or
judges can only amount to good cause if it was caused by “exceptional
circumstances.” (People v. Engram (2010) 50 Cal.4th 1131, 1163–1164.)
Neither chronic congestion of the court’s docket, nor improper court
administration, nor judicial vacations, justify delaying a trial past the last day.
(Id., p. 1138; Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 783.)
In June 2021, after covid-19 social distancing requirements were lifted,
respondent court reopened all eleven trial courtrooms at the Hall of Justice.
But it failed to keep them fully stocked with trials. Over the thirteen months
that followed, it only used fifty-five percent of its trial capacity: on an average
day during that period, only six of the eleven trial courtrooms were being used
for trial, with the rest either handling nontrial matters or sitting locked and
empty. While superior courts in other counties cleared their covid-19
backlogs, respondent court’s has grown by more than half since reopening.
In recent months, the vast majority of empty courtrooms were attributable to
judicial vacations and other routine absences, and less than ten percent were
caused by covid-19-related public health measures or staffing issues.
The last day for Estrada’s trial was July 26, 2022. Respondent court
continued the trial for two months, issuing a boilerplate sixteen-page order
which it enters in every case. On that date, three trial courtrooms were dark:
one trial judge was away on official business, another was on an “excused
absence,” and a third was covering for a colleague away on personal leave.

2
 The question presented is whether the prosecution carried its burden of
showing that exceptional circumstances justified a continuance of Estrada’s
trial on July 26, 2022.

3
 table of contents

Question Presented ....................................................................................... 2

Table of Contents .......................................................................................... 4
Table of Authorities....................................................................................... 6
Petition for a Writ of Mandate or Prohibition ............................................... 8
I. Introduction ..................................................................................... 8
II. Parties and jurisdiction .................................................................. 12
III. Procedural history.......................................................................... 12
A. Estrada’s trial is continued past its last day............................... 12
B. Respondent court denies Estrada’s motion to dismiss ............. 14
IV. Facts................................................................................................15
A. After public health restrictions are lifted, respondent
court fully reopens for jury trials ............................................... 16
B. By the time it reopened, respondent court had a
massive backlog of criminal trials .............................................. 16
C. Respondent court leaves almost half of its trial
capacity unused for more than a year .........................................17
D. Empty courtrooms are overwhelmingly caused by
judicial vacations and routine absences, not covid-19 ............ 22
E. On the date Estrada’s case was continued, three
courtrooms were dark because of judicial absences .................. 28
F. As other courts clear their backlogs, respondent
court’s backlog increases by 59% over fourteen
months ....................................................................................... 29
G. Estrada faces harsh custody conditions at the San
Francisco County Jail .................................................................31
V. Reasons for granting the writ ......................................................... 34
VI. Application to stay jury trial .......................................................... 35
Verification .................................................................................................. 37
Memorandum of Points and Authorities ..................................................... 38
I. Standard of review ......................................................................... 38

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 II. More than a year after reopening, covid-19 can no
longer serve as blanket good cause for chronic delays
caused by improper court administration ...................................... 39
A. covid-19 does not excuse the court’s massive
underuse of its trial resources over thirteen months ................. 39
B. Judicial vacations are not good cause for a trial delay ............... 45
C. Fewer defendants waiving time is a natural result of
the backlog and is not good cause for a trial delay ..................... 48
D. Trial delays inflict severe psychological harm on
people forced to wait in jail .........................................................51
III. Conclusion ..................................................................................... 52
Word Count Certificate ............................................................................... 53

5
 table of authorities

Cases

Arreola v. Municipal Court (1983) 139 Cal.App.3d 108 .................... 10, 48–49
Bullock v. Superior Court (2020) 51 Cal.App.5th 134 ................................... 45
Elias v. Superior Court (2022) 78 Cal.App.5th 926 ................................. 35, 41
Hernandez-Valenzuela v. Superior Court
(2022) 75 Cal.App.5th 1108 ....................................... 9, 11, 28, 40–43, 46
Herrick v. Municipal Court (1957) 151 Cal.App.2d 804 ................................ 40
Ibarra v. Municipal Court (1984) 162 Cal.App.3d 853 .................................. 35
In re Venable (1927) 86 Cal.App. 585 ........................................................... 40
Lewis v. Superior Court (1981) 122 Cal.App.3d 494 .......................... 35–36, 47
People v. Echols (1954) 125 Cal.App.2d 810 ............................................ 40, 42
People v. Engram (2010) 50 Cal.4th 1131 .................................. 2, 11, 39–42, 51
People v. Hajjaj (2010) 50 Cal.4th 1184 ........................................................ 38
People v. Johnson (1980) 26 Cal.3d 557 ................................................... 38–40
People v. Martinez (2000) 22 Cal.4th 750..................................................... 38
People v. Tucker (2011) 196 Cal.App.4th 1313 .............................................. 40
People v. Wilson (1963) 60 Cal.2d 139 ..................................................... 35, 40
Rhinehart v. Municipal Court (1984) 35 Cal.3d 772 ............................ 6, 45–46
Stabio v. Superior Court (1994) 21 Cal.App.4th 1488 ................................... 35
Stanley v. Superior Court (2020) 50 Cal.App.5th 164 .................................. 40
Stewart v. Superior Court (1955) 132 Cal.App.2d 536 ............................ 40, 42
Sykes v. Superior Court (1973) 9 Cal.3d 83 ................................................... 38

Constitution and statutes

Cal. Const. art. VI, § 10 ............................................................................... 12

Code Civ. Proc., § 446................................................................................. 37
Code Civ. Proc., §§ 1085, 1103.................................................................... 12
Pen. Code, § 1382 .................................................................................. passim

6
 Other authorities

San Francisco Dept. of Human Resources, “Managing Outbreaks/

Multiple Infections of COVID-19” (July 25, 2022)
<https://sfdhr.org/sites/default/files/documents/COVID-19/
COVID-19-Managing-Outbreaks-Multiple-Infections.pdf> ................. 44

7
 court of appeal of the state of california
first appellate district

Miguel Angel Estrada,

Petitioner,
v. Superior Court No. 21008360
San Francisco Superior Court,
Respondent;
People of the State of California,
Real Party in Interest.

petition for a writ of mandate or prohibition

Petitioner Miguel Angel Estrada alleges:

I. Introduction
1. Fifteen months ago, following a successful covid-19 vaccination
campaign, social distancing restrictions were lifted across the state. Since
then, thanks to the hard work of California trial judges, prosecutors and
defense counsel, our criminal justice system has gradually returned to
normal. The covid-19 emergency rules sunsetted in March this year. The
Chief Justice rescinded the remaining provisions of her statewide order in
April. The Governor terminated the Judicial Council’s emergency
rulemaking powers in June. And one by one, trial courts have been steadily
eliminating the tail-end of their covid-19 criminal backlogs. Superior courts
in Los Angeles, Alameda, Contra Costa, Marin and Sacramento now have no

8
backlog, and are trying cases within the 60-day deadline required by Penal
Code section 1382. In San Diego, the superior court is “almost back to
normal,” and is no longer continuing cases on its own motion. And the vast
majority of trial courts elsewhere in the state have stopped requesting local
emergency orders from the Chief Justice extending this deadline, signaling
that they too are no longer routinely delaying jury trials.
2. But there is an outlier: San Francisco. In the fifteen months since
reopening, respondent court has failed to dedicate anywhere near enough
judges or courtrooms to work through its enormous backlog of criminal cases.
It assigned just eleven trial departments in the Hall of Justice—the same
number as before the pandemic, when there was no backlog—and did not add
any more, even after this Court urged it to do so.1 And it failed to fully use
even this small complement: instead, trial courtrooms went unused for
months, either hosting nontrial matters or sitting empty. The court’s own
records show that, in the thirteen months from July 2021 to July 2022, the
court used just fifty-five percent of its trial capacity—meaning that, on an
average court day during that period, only six out of the eleven “trial”
courtrooms were actually holding a trial.
3. Because of this sustained underuse, respondent court’s backlog
continues to mount. In June 2021, there were 416 total cases past their
statutory deadline for trial: last month, there were 660. In June 2021, there
were 104 people in custody past their last day on a felony case: last month,
there were 151.
4. The prosecution tried to blame the court’s empty departments on
surges in covid-19 infection. But this well-worn excuse is refuted by the

1Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1135–

1136 [urging court to consider “expanding the number of trial courtrooms
in the Hall of Justice beyond the number that was standard pre-pandemic”.]

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court’s own records. They reveal that the majority of dark courtrooms from
April 1 to August 8, 2022 were caused by judges’ vacations. Most of the
remaining vacancies were caused by other routine judicial absences; less than
ten percent were attributed to medical leave and covid-19 staffing
problems. Inexplicably, the court failed to assign civil, visiting and retired
judges to cover for their vacationing colleagues, and instead let multiple
courtrooms sit empty. Often, three or more courtrooms were shuttered at
once as a result of simultaneous judicial vacations, and on some days, more
than half of the trial departments were empty because judges were away on
vacation.
5. The prosecution also cited the fact that most people charged with
crimes in San Francisco set their case for trial. But this is a direct and
unsurprising consequence of respondent court’s enormous backlog. Given
the lengthy trial delays, it is no wonder that criminal defendants want to join
the end of the court-created queue, since most people—especially those in
custody—do not want to wait additional months or years for their case to be
tried. In any event, the state has an obligation to provide speedy jury trials to
all persons charged with a crime, and may not blame its failure to do so on
not enough defendants waiving their constitutional rights: “unprecedented
demand” for speedy jury trials does not excuse a trial delay. (Arreola v.
Municipal Court (1983) 139 Cal.App.3d 108, 115.)
6. While courtrooms sat empty, more than a hundred people waited in
jail past their last day for trial, under exceptionally harsh lockdown conditions
that risk severe damage to their mental health.
7. Petitioner Miguel Angel Estrada is one of those people. His last day
for trial under Penal Code section 1382 was July 26, 2022, more than a year
after the court’s full reopening. On that day, as usual, multiple courtrooms

10
were empty because judges were on routine absences. Estrada announced
ready for trial, and objected to any continuance. The court nevertheless
found good cause to continue his trial for months, relying on a boilerplate
sixteen-page order it now routinely issues in every case.
8. Delays caused by chronic congestion, improper court administration
and judicial vacations cannot justify continuing a criminal trial past its last
day. (People v. Engram (2010) 50 Cal.4th 1131, 1138.) In Hernandez-Valenzuela
v. Superior Court, this Court found that the covid-19 pandemic still
furnished good cause to delay jury trials which were called in the few weeks
following reopening, when the court was still dealing with the backlog it had
racked up during fifteen months of heavily restricted operations. (Hernandez-
Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1128.) But it warned
that the court “cannot turn to the pandemic and perpetually cite ‘exceptional
circumstances’ to avoid dismissal under section 1382. At some future point,
should respondent court’s backlog persist while courtrooms remain dark and
unused for long stretches of time, a backlog that originated with the pandemic
could transform into one that persists or grows due to court administration,
or the nonuse of available judicial resources.” (Id. at p. 1135.)
9. That point has now been reached. More than a year after reopening,
“emergency” trial continuances have become a daily routine. The court still
keeps courtrooms “dark and unused for long stretches of time.” (Ibid.)
Departments are shuttered because of judicial vacations and other routine
absences. As a result, its backlog has not only “persist[ed]” (ibid.) but grown
by more than half. There is no end in sight, and no prospect of restoring the
right to a speedy trial in San Francisco: only this Court can fix the
extraordinary dysfunction that has arisen.

11
10. Since the prosecution failed to meet its burden of showing that
Estrada’s continuance was justified by “exceptional circumstances,” the
Court should issue a writ of mandate or prohibition.

II. Parties and jurisdiction

11. Estrada is the defendant in People v. Miguel Angel Estrada, no.
21008360, a felony case pending in respondent court. The People of the State
of California were the plaintiff and are named as real party in interest.
12. This Court has jurisdiction under article VI, section 10 of the
California Constitution and Code of Civil Procedure sections 1085 and 1103.
13. The exhibits attached to this petition are true and correct copies of the
documents listed in the Table of Exhibits.

III. Procedural history

A. Estrada’s trial is continued past its last day

14. Estrada is charged in a felony information with attempted murder,
assault with a deadly weapon, battery with serious bodily injury, mayhem,
and possession of a switchblade knife in a motor vehicle. (Exh. A,
Information, PE0008.) He was arraigned on the information on May 27,
2022, entered pleas of not guilty, and requested a jury trial on a no-time-
waiver basis.2 Respondent court fixed July 26, 2022 as his statutory deadline
for trial under Penal Code section 1382.
15. On July 26, 2022, respondent court called Estrada’s case. (Exh. B,
Reporter’s Transcript of Proceedings, July 26, 2022, 2:4–8, PE0014.) It

2Estrada had previously been arraigned on an information alleging the same

offenses on September 27, 2021. The prosecution dismissed the case on
April 29, 2022, and Estrada stipulated to a refiling under the same court
number.

12
found good cause to continue the trial to September 28, 2022, on the ground
that “[t]he pandemic is still disrupting life generally, and specifically the
smooth functioning of criminal justice in San Francisco as well as other
places.” (Id. at 3:5–9, PE0015.) It filed a standard written order in support of
the good cause finding. (Exh. C, Order of the Court, PE0018.)
16. The order described the onset of the covid-19 pandemic, the
declaration of a state of emergency, and the impact of social distancing and
other restrictions on court operations between March 2020 and June 2021.
(Id. at pp. 1–8, PE0019–0026.) It stated that in January 2022, numerous
sheriff’s deputies were unavailable to staff courtrooms because of the Delta
and Omicron variants, and that this shortage is “anticipated to continue
through March of 2022.” (Id. at p. 9, PE0027.) It gave examples of trials that
had been delayed in January 2022 because of the new variants, and stated that
the court had reduced the number of potential jurors allowed to be
simultaneously present for voir dire. (Id. at p. 10, PE0028.) It added that, in
May 2022, the Bay Area experienced a “massive spike” in covid-19
infections, and that “numerous” judges, staff, attorneys, witnesses and
jurors were unable to appear in court from May 2022 “until the present.”
(Id. at pp. 10–11, PE0028–0029.) It stated that, since reopening, it had
advanced 419 felony no-time-waiver trials to be assigned to trial courtrooms:
of those, 126 were assigned to a trial courtroom, and 42 were being, or had
been, tried. (Id. at p. 11, PE0026.) It added that, since reopening, almost all
defendants arraigned on felony charges had set their case for trial on a no-
time-waiver basis, compared with 58.9% in a six-month period before the
pandemic. (Ibid..) The order made no mention of courtroom vacancies due
to judicial vacancies or routine absences.

13
17. Estrada announced ready for trial objected to the continuance. (Exh.
B, 2:8–3:4, PE0014–0015.)

B. Respondent court denies Estrada’s motion to dismiss

18. Estrada filed a motion to dismiss the case on the ground that his
speedy trial rights under Penal Code section 1382 had been violated. (Exh. D,
Petitioner’s Motion to Dismiss for Speedy Trial Violation, PE0035.) He
pointed out that, on the date the court had found good cause to continue his
trial, three trial courtrooms were not in use: department 10 was dark because
the judge was away on “official business,” department 19 was dark because
the judge was covering for another judge away on personal leave, and
department 28 was dark because the judge was on an “excused absence.”
(Id., PE0037.) In support of the motion, he filed two declarations of counsel
and fifty-two exhibits, many of them drawn from respondent court’s own
records. (Exh. E, Declaration of Oliver Kroll, PE0303; Exhs. 1–46, PE0321–
1563; Exh. H, Petitioner’s Supplemental Declaration and Exhibits, PE1796;
Exh. J, Petitioner’s Exhibit 52, PE1853.) Section IV below describes this
evidence in more detail.
19. The People filed an opposition and request for judicial notice, along
with several exhibits. (Exh. F, People’s Opposition to Motion to Dismiss,
PE1566; Exh. G, People’s Exhibits, PE1588; Exh. I, People’s Supplemental
Exhibits, PE1820.)
20. Respondent court heard argument on the motion on October 11, 2022.
The transcript of the argument was ordered on October 14, 2022, but has not
yet been prepared by the court reporter. It will be filed as soon as it is
available.
21. Respondent court filed a written order denying the motion. (Exh. K,
Order Denying Motion to Dismiss, PE1862.) The order reincorporated the

14
court’s good cause findings and rehearsed the court’s difficulty in sending
out jury trials between March 2020 and June 2021. (Id. at pp. PE1861–1862.)
It stated that 449 felony jury trials had been “advanced” since reopening, of
which 264 had been settled, dismissed or continued at the request of one or
both of the parties; of the 158 felony cases assigned for trial, 39 “resolved
without a jury trial,” and 62 were either tried to verdict or in trial. (Id. at
PE1862–1863.)
22. The written order also contained the following statement:
“Additionally, on July 26, 2022, court personnel were unavailable to staff
courtrooms because of covid-19.” (Id. at p. 2, PE1863.) When the
prosecution submitted a similar draft order in another case, defense counsel
objected via email, pointing out that there was no evidence of this fact, and
that the daily court status reports did not show that courtrooms were dark
because of covid-19-related staff absences. (Exh. L, Email exchange with
respondent court, PE1865.) Respondent court overruled the objection,
stating: “I still believe the sentence is appropriate at this time. I will continue
to keep it in the orders.” (Ibid.) The court granted defense counsel a standing
objection to this sentence in all similar orders issued in other cases, noting:
“[y]ou need not object to it each time.” (Ibid.)

IV. Facts
23. Estrada submitted 52 numbered exhibits to the trial court, along with
declarations authenticating the exhibits and explaining their contents. That
evidence established the following facts.

15
 A. After public health restrictions are lifted, respondent court fully
reopens for jury trials
24. On June 15, 2021, the San Francisco health officer’s “Safer Return
Together” order came into effect. (Exh. 26, San Francisco Dept. of Public
Health, Order of the Health Officer No. C19–07y, June 11, 2021, PE1346.)
The order hailed the success of San Francisco’s vaccination campaign at
containing covid-19, and noted that case rates “are now extremely low.”
(Id., p. 1, PE1347.) It rescinded the previous stay-at-home order, and lifted
indoor capacity limits and social distancing requirements. (Ibid.) The order
tracked the statewide “Beyond the Blueprint” plan, which also lifted
capacity limits and distancing requirements. (Exh. 24, Cal. Dept. of Public
Health, Memorandum to All Californians, May 21, 2021, PE1337; Exh. 25,
Cal. Dept. of Public Health, State Public Health Officer Order, June 11, 2021,
PE1342.)
25. In response, the trial court announced that it was returning to “pre-
pandemic” levels of service on June 28, 2021. (Exh. 27, announcement on
Superior Court website, p. 1, PE1363.) The court reopened all criminal trial
departments at the Hall of Justice, its main criminal courthouse. (Exh. C, p.
8, PE0026.)

B. By the time it reopened, respondent court had a massive backlog of

criminal trials
26. By the time of the reopening, a large backlog of trials had built up.
(Exh. E, Kroll Dec., ¶ 32, PE0309–0310; Exhs. 4–6, no-time-waiver trial lists,
PE1019–1088.) On June 29, 2021, there were 562 cases, including 153 in-
custody felony cases, waiting to be tried. (Exh. E, Kroll Dec., ¶ 32, PE0309–
0310; Exh. 6, no-time-waiver trial lists, June 29, 2021, PE1059.) Of the 562
overall cases, 416 were past their statutory last day for trial. (Id. at PE1060–

16
1068, PE1084–1086.) Of the 153 in-custody felony cases, 104 were past their
statutory last day for trial. (Id. at PE1072–1075.)

C. Respondent court leaves almost half of its trial capacity unused for
more than a year
27. Despite the large backlog, the court did not open additional trial
departments at the Hall of Justice. It assigned the same eleven trial
courtrooms—departments 10, 13, 16, 19, 21, and 24 through 29—that were
in operation before the pandemic, when there was no backlog. (Exh. 11,
judicial assignments, Aug. 26, 2022, PE1247.) And respondent court’s
records show that, in the year following re-opening, it failed to keep these
courtrooms stocked with trials.
28. Exhibit 1 is a set of “Criminal Daily Court Status Reports” produced
by respondent court between June 28, 2021 and August 8, 2022. (Exh. 1,
criminal daily court status reports, PE0321.) These reports are daily records
of the business scheduled to take place in each department of the Hall of
Justice, including the eleven trial departments. The reports show whether
each department is in trial, and also whether it is “dark”—that is, closed. In
more recent months, when a department is dark, the report gives the reason
for the closure. The report also states, for each court day, the total number
of “HOJ [Hall of Justice] Courts in Trial.”
29. Over the eleven months from July 1, 2021 to May 31, 2022, the average
number of “HOJ Courts in Trial” was 6.2 out of 11. (Exh. E, Kroll Dec., ¶ 8,
PE0303–0304.) In other words, on an average court day in that eleven-month
period, just 56% of the “trial” courtrooms in the Hall of Justice were actually
in trial.
30. This table shows the monthly average of the “HOJ Courts in Trial”
statistic (see ibid.):

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 Trial courtroom occupancy, July 2021 to May 2022
Average “HOJ As % of 11 trial
Month
Courts in Trial” courtrooms
July 2021 5.3 48%
August 2021 4.3 33%
September 2021 3.1 28%
October 2021 5.3 48%
November 2021 5.9 54%
December 2021 6.2 56%
January 2022 5.8 53%
February 2022 6.4 58%
March 2022 7.6 69%
April 2022 7.9 72%
May 2022 9.8 89%
Average 6.2 56%

31. Beginning in about mid-May 2022, the “HOJ Courts in Trial”

statistic began to overstate the number of courtrooms in trial—apparently
because it included out-of-custody trials that had been assigned to
departments for all purposes, but had not actually started. As a result, on
most days in late May, June and July, it showed all eleven trial courtrooms as
“in trial,” even though not all courtrooms were holding a trial.3

3 For example, on May 25, 2022, the daily court report lists 11 “HOJ Courts
in Trial,” but also shows that no trial was scheduled in departments 10, 25,
27, 28 and 29. (Exh. 1, PE0782–0784.) And on July 7, 2022, the report again
lists 11 “HOJ Courts in Trial,” but shows that only three departments—16,
21 and 26—were holding a trial; five others were dark with no trial in
progress, and the other two were in session but not holding a trial. (Id. at
PE0891–0893.) A similar discrepancy appears almost every day from May
19 to August 8, 2022. (See id. at PE0737–0971.) This discrepancy explains
the apparent increase in jury trials in May 2022. According to the “HOJ
Courts in Trial” statistic, there were an average of 9.8 departments in trial
each day in May 2022; but if one actually counts the number of courtrooms
that are actually shown as “In Trial” each day, one obtains an average of
8.0 departments in trial each day.

18
32. But using the more detailed courtroom-level data contained in Exhibit
1, it is possible to count which departments were engaged in trial, as well as
which departments were dark and not in trial.
33. This diagram shows occupancy of the eleven trial courtrooms in June,
July and August 1–8, 2022, according to the data contained in Exhibit 1. (See
Exh. E, Kroll Dec., ¶¶ 11–13, PE0304–0306; Exh. 1, PE0801–0971.)

June 1 2 3 6 7 8 9 10 13 14 15 16 17 20 21 22 23 24 27 28 29 30
10 T T T T T T T T T
13 T T T T T T T T T T T T
16 T T T T T T T T T T T T
19 T T
21 T T T T T T T T T T T T T T T T T T T T T T
24 T T T T T T T T T T T T T T T T
25 T T T T T T T T T T
26 T T T T T T T T T T T T T T T T T T T T T T
27 T T T T T T T T T T T T
28 T T T T T T T T
29 T T T T T T T

July 1 5 6 7 8 11 12 13 14 15 18 19 20 21 22 25 26 27 28 29
10
13 T T T T T T T T T T T
16 T T T T T T T T T
19
21 T T T T T T T T T T T T T T T T T T T T
24 T T T T T T T T T
25 T T T T T T T T T T T T
26 T T T T T T T T T T T T T T T T T T T T
27 T T T T T
28 T T T T T T
29 T T T

August 1 2 3 4 5 8
10 T in trial
13 T T T T T T in session, not in trial
16 T T T T T dark during trial
19 dark, not in trial
21 T T T T T T
24 T T T T T T
25
26 T T T T T T
27 T T
28
29

19
34. These data show that, on an average court day in June 2022, only 55%
of the trial courtrooms were occupied with a trial, and 19% were dark with no
trial being held. Occupancy in July 2022 was even lower: on an average court
day, just 43% of the trial courtrooms were holding a trial, and 27% were dark
with no jury trial assigned. (Exh. E, Kroll Dec., ¶ 13, PE0306.)
35. Altogether, the average trial courtroom occupancy from July 2021 to
July 2022 was 55%. In other words, on an average court day in that thirteen-
month period, while more than a hundred people waited for trial in jail, only
about six of the eleven trial courtrooms in the Hall of Justice were actually
holding trials.
36. Six occupied trial courtrooms represent less than ten percent of
respondent court’s sixty-five departments. (Exh. 11, PE1247.)
37. Exhibit 1 also reveals long periods during which nominal “trial”
departments held no trials. During these periods, the departments either
handled non-trial matters or sat empty.
a. Department 10 held no trials between June 13 and August 8, 2022, a
period of almost two months.4 (Id. at PE0837–0971.)
b. Department 13 held no trials between October 20 and December 28,
2021, a two-month period, other than two trials which settled on their
first day. (Id. at PE0466–0561; PE0494–0495 [Nov. 9, 2021];
PE0538–0541 [Dec. 13, 2021].) It then held no trials between March
25 and April 19, 2022, and again held no trials between June 17 and
July 12, 2022, periods of almost a month each. (Id. at PE0680–0717,
PE0849–0911.)

4On June 17 and 21, 2022, out-of-custody trials were listed as being on for
“status.” (Exh. 1, PE0849, PE0855.)

20
 c. Department 16 held no trials from September 23 to October 21, 2021
and from December 16, 2021 to January 10, 2022, each periods of
almost a month each. (Id. at PE0430–0469, PE0544–0577.)
d. Department 19 was in trial for just one court day between December
16, 2021 and February 16, 2022, a two-month period. (Id. at PE0544–
0606; PE0588–0595 [Jan. 21, 2022].) It also held no trials from June 6
to August 8, 2022, another two-month period.5 (Id. at PE0810–0971.)
e. Department 21 was in trial for just one court day between January 6
and February 4, 2022, a one-month period. (Id. at PE0572–0613,
PE0594 [Jan. 24, 2022].) It also held no trials from April 1 to 22, 2022,
a three-week period. (Id. at PE0688–0723.)
f. Department 24 held no trials from October 13 to December 1, 2021,
and again from February 2 to March 18, 2022, both periods of a month
and a half. (Id. at PE0456–0521, PE0608–0671.) It also held no trials
from June 24 to July 18, 2022, a three-week period. (Id. at PE0864–
0926.)
g. Department 25 held no trials from November 12 to December 27,
2021, a 45-day period. (Id. at PE0454–0557.) And it was in trial for just
two court days between April 29 and June 10, 2022, a six-week period.
(Id. at PE0734–0836; PE0758 [May 13, 2022].)6
h. Department 28 held no trials between February 2 and March 18,
2022, a 45-day period. (Id. at PE0608–0671.)

5 On June 17, 2022, two out-of-custody trials were listed as being on for
“status.” (Exh. 1, PE0849–0850.)
6 On May 31 and June 1, 2022, out-of-custody trials were listed as being on

for “status/scheduling.” (Exh. 1, PE0797, PE0802.)

21
 i. Department 29 was in trial on only six days between June 7 and
August 8, 2022, a two-month period. (Id. at PE0814–0971; PE0839
[June 13, 2022]; PE0863 [June 23, 2022]; PE0939–0947 [July 25–27,
2022].)7

D. Empty courtrooms are overwhelmingly caused by judicial vacations

and routine absences, not covid-19
38. In their opposition, the People blamed the low courtroom usage on the
lingering impact of the covid-19 pandemic, including recent surges in
infections. (Exh. F, PE1579–1580.) But the court’s records refute this claim.
They show that, from April 1 to August 8, 2022, more than half of dark
courtroom days were caused by judges’ vacations, and the majority of the
other dark days were caused by routine absences, such as duty judge
responsibilities and travel for “official business”: only a tiny fraction were
caused by medical leave or other covid-19-related staffing problems.
39. Exhibit 2 is a set of judicial leave calendars showing the reasons that
superior court judges were on leave between June 28, 2021 and August 8,
2022. (Exh. 2, judicial leave calendars, PE0972.) Exhibit 3 is a key to the
meaning of the two-letter abbreviations used in Exhibit 2. (Exh. 3, absence
request codes, PE1017.) For example, “va” means that the judge was on
vacation.
40. According to the daily court reports, there were 296 occasions
between April 1 and August 8, 2022 on which a trial department was listed as
dark. On 191 of those 296 dark days, the courtroom was not in trial; the other
106 dark days occurred mid-trial. (Exh. E, Kroll Dec., ¶¶ 15–16 and notes,
PE0307, PE0319–0320 [dark days from June 1 to Aug. 8, 2022]; Exh. H,

7On June 28, 2022, an out-of-custody case was listed as being on for
“status/MHD petition.” (Exh. 1, PE0875.)

22
Supplemental Declaration of Oliver Kroll, ¶¶ 4–5 and notes, PE1798–1799,
PE1803–1804 [dark days from Apr. 1 to May 30, 2022]; id., ¶¶ 18–19 and
notes, PE1802, PE1804–1805 [dark days with no trial assigned].)
41. The daily court reports often give general reasons for the dark
courtrooms. For example, they may show that a department was dark
because the assigned judge was on an “approved absence,” or was
“covering” another department. But by cross-referencing the daily court
reports with the judges’ leave schedules, it is possible to identify more
specific reasons for the courtroom closures.
42. This table shows the reasons courtrooms were dark from April 1 to
August 8, 2022, according to Exhibits 1 and 2.8

8These data were presented to the trial court in two separate tables,
covering April 1 to May 30 and June 1 to August 8, 2022, accompanied with
detailed notes that identify the reason given for every dark day in each trial
department. (Exh. D, Kroll Dec., ¶¶ 15–16 and notes, PE0307, 0319–0320
[dark days from June 1 to Aug. 8, 2022]; Exh. H, Kroll Supp. Dec., ¶¶ 4–5
and notes, PE1798–1799, PE1803–1804 [dark days from Apr. 1 to May 30,
2022].) The data are combined here in a single table.

23
 Reasons for dark trial courtrooms, April 1–August 8, 2022
Number of
Reason %
dark days
On vacation, or covering for judge on
176 59%
vacation
On official business, or covering for judge on
28 9%
official business
On medical leave, or covering for judge on
21 7%
medical leave
On personal leave, or covering for judge on
personal, bereavement or family medical 18 6%
leave
Duty judge, or covering for duty judge 17 6%
Covering for judge not shown as on leave 6 2%
“Due to covid protocol” 3 1%
“Due to courtroom capacity” 2 1%
“Working in chambers” 2 1%
“Staffing” 1 <1%
Covering for vacant department 1 <1%
Covering for judge on unknown type of leave
1 <1%
(“po”)
Not shown as on leave 20 7%
Total 296 100%

43. Altogether, more than half the dark days were due to vacations, and
75% of the dark days were due to vacations, official business and duty judge
responsibilities. Only 7% were due to medical leave, and only six dark days—
representing 2% of the total—were listed as being due to covid-19
measures, courtroom capacity or staffing. Since the court records do not
disclose whether medical leave was caused by covid-19 exposure, the true
number of courtrooms that were dark because of the covid-19 pandemic is
likely even smaller.
44. There were 90 weekdays from April 1 to August 8, 2022, excluding
court holidays. The loss of 176 working court days to judges’ vacations was
therefore effectively equivalent to closing two whole trial departments.

24
45. A similar picture emerges if one narrows the focus to the 191 dark
courtroom days where the courtroom was not being used for trial (as opposed
to courtrooms taking a dark day mid-trial). Once again, most of those dark
days in unused trial courtrooms were caused by judicial vacations, and only a
tiny fraction by covid-19.
46. This table shows the reasons courtrooms were dark with no trial
assigned from April 1 to August 8, 2022, according to Exhibits 1 and 2. 9

Reasons for dark trial courtrooms with no trial assigned, April 1–

August 8, 2022
Number of
Reason %
dark days
On vacation, or covering for judge on
106 55%
vacation
On official business, or covering for judge on
20 10%
official business
Duty judge, or covering for duty judge 15 8%
On medical leave, or covering for judge on
15 8%
medical leave
On personal leave, or covering for judge on
personal, bereavement or family medical 13 7%
leave
Covering for judge not shown as on leave 5 3%
Covering for judge on unknown type of leave
1 1%
(“po”)
“Staffing” 1 1%
Not shown as on leave 15 8%
Total 191 100%

47. Altogether, more than half of dark days with no trial assigned were due
to vacations, and 75% of such dark days were due to vacations, official

9 These data were also presented to to the trial court, accompanied again
with detailed notes that identify the reason given for every dark day in each
trial department that was not holding a trial. (See Exh. H, Kroll Supp. Dec.,
¶¶ 18–19 and notes, PE1802, PE1804–1805.)

25
business and duty judge responsibilities. Only 8% were due to medical leave,
and just one dark day—0.5% of the total—was listed as being due to staffing
problems. (Exh. 1, PE0752 [May 11: dept. 29 dark due to “staffing”].)
48. Before April 2022, the daily court reports are less consistent in
recording the reasons for dark courtrooms. But they do occasionally report
that a courtroom was dark because of a staffing issue or covid-19 exposure.
There were just eleven such annotations in the three months from January to
March 2022. (Exh. 1, PE0626–0627 [Feb. 16: depts. 19, 25, 29]; PE0628
[Feb. 17: dep. 13]; PE0649 [Mar. 4: dept. 28]; PE0651 [Mar. 7: dept. 28];
PE0654 [Mar. 9: dept. 21]; PE0656–0657 [Mar. 10: depts. 21, 28]; PE0664
[Mar. 15: dept. 21].)
49. The trial courtroom shortage due to vacations was especially acute in
April 2022. On every court day between April 8 and 27, there were at least
three trial courtrooms sitting empty because the judge was either on vacation
or covering for a colleague on vacation. (Exh. 1, PE0698–0731; Exh. 2,
PE1004–1005.) On April 18 and 22, in particular, six trial courtrooms—more
than half of the court’s criminal trial capacity—were empty due to judges’
vacations. (Exh. 1, PE0714–0715 [Apr. 18: depts. 16, 19, 21, 24, 28, 29];
PE0722–PE0723 [Apr. 22: depts. 10, 13, 16, 19, 25, 29].)
50. There were further shortages in June, July and early August as
criminal judges took overlapping vacations. (Exh. 2, PE1008–1016.) On every
court day between June 9 and July 22, and again between July 29 and August
8, 2022, there was at least one trial courtroom—and often several—that were
dark because the assigned judge was either on vacation or covering for a
vacationing colleague. (Exh. 1, PE0825–0938, PE0951–0971.) For example,
on June 27 and 28, there were five courtrooms lost to judicial vacations; on
July 15 and 22, four courtrooms were dark because of vacations; and from

26
August 3 to 8, there were between four and five courtrooms that were empty
because judges were on vacation. (Exh. 1, PE0870–0875 [June 27 and 28:
depts. 10, 13, 19, 21, 24]; PE0921–0923 [July 15: depts. 13, 19, 24, 29];
PE0936–0938 [July 22: depts. 13, 24, 28, 29]; PE0960–0962 [Aug. 3: depts.
10, 13, 16, 21, 28]; PE0963–0965 [Aug. 4: depts. 10, 13, 19, 21, 28]; PE0966–
0968 [Aug. 5: depts. 10, 13, 24, 28]; PE0969–0971 [Aug. 8: depts. 10, 24, 26,
28, 29].)
51. Some of these vacations were taken mid-trial, with the result that the
trial may have occupied the courtroom longer than it otherwise would have.
But others were taken when the department was not holding any trial. From
April 7 to 25, and again from June 22 to July 22 and from August 1 to 8, 2022,
at least one department was empty with no trial assigned because the judge
was either on vacation or covering for a vacationing colleague. (Id. at
PE0698–0727, PE0858–0938, PE0954–0971.) Often, multiple departments
stood empty with no trial assigned for this reason. For example, on April 18,
June 27, June 28 and July 15, there were four courtrooms that were vacant
with no trial being held because of judicial vacations—more than a third of
the total complement of trial courtrooms. (Id. at PE0714–0715 [Apr. 18:
depts. 16, 19, 21, 29]; PE0870–0875 [June 27 and 28: depts. 10, 13, 19, 24];
PE0921–0923 [July 15: depts. 13, 19, 24, 29].)
52. Respondent court often calls on visiting judges to handle gaps in its
staffing or to hold pretrial conferences. (See, e.g., Exh. 1, PE0747–0755 [May
9–12, 2022: Judge Northway covering Traffic department]; PE0796–0971
[May 31–Aug. 8, 2022: Judge Tsenin holding pretrial conferences in dept.
14].) But despite its enormous backlog—and despite this Court urging it to
do so—respondent court failed to assign civil, visiting or retired judges to

27
make up shortfalls due to trial judges’ vacations.10 The result was shuttered
trial courtrooms and a limited capacity to hold jury trials.

E. On the date Estrada’s case was continued, three courtrooms were

dark because of judicial absences
53. Respondent court stated that absences on July 26, 2022 were caused
by covid-19 staffing problems. (Exh. K, PE1863.) But as Estrada
repeatedly pointed out, the court’s own records prove that this was not the
case. On July 26, as was typical throughout the period, multiple courtrooms
were dark because of routine absences, and none of the dark courtrooms were
attributed to covid-19 staffing issues.
54. The daily court report for July 26, 2022 shows that three trial
departments were dark with no trial assigned. (Exh. 1, PE0942–0944.)
Department 10 was dark because the assigned judge, Hon. Alexandra Robert
Gordon, was away on “official court business.” (Id. at PE0942.) The
courtroom was vacant for this reason for two weeks. (Id. at PE0924–PE0951
[July 18–29, 2022]; see also Exh. 2, PE1013 [July 2022 leave calendar].)
Department 19 was dark because the assigned judge, Hon. Harry Dorfman,
was covering for a colleague on personal leave. (Exh. 1, PE0942 [covering
dept. 22]; Exh. 2, PE1012 [judge assigned to dept. 22 on personal leave].)
Finally, department 28 was dark because the assigned judge, Hon. Victor
Hwang, was on an “excuse d absence.” (Exh. 1, PE0944.) Apart from one
day, the courtroom was vacant for this reason for the following two weeks.

10See Hernandez-Valenzuela, supra, 75 Cal.App.5th at 1135–1136 [urging

court to consider “reassigning additional judicial officers from other
departments in the Civic Center Courthouse or Hall of Justice, or using
visiting and retired judges to cover courtroom vacancies”].

28
(Id. at PE0944–0971 [July 26–Aug. 8, 2022]; PE0953 [July 29, 2022:
courtroom listed as “TBD”].)

F. As other courts clear their backlogs, respondent court’s backlog

increases by 59% over fourteen months
55. As a result of the massive underuse of trial courtrooms at the Hall of
Justice, respondent court’s backlog, far from shrinking, has increased
dramatically in the fourteen months since reopening.
56. As mentioned above, on June 29, 2021, there were 562 no-time-waiver
jury trials, of which 416 were past their last day. By September 2, 2022, there
were 790 no-time-waiver jury trials, of which 660 were past their last day.
(Exh. E, Kroll Dec., ¶ 32, PE0309–0310; Exh. 10, no-time-waiver trial lists,
Sep. 2, 2022, PE1202.) That represents an increase of 59% in cases past their
last day.
57. On June 29, 2021, there were 153 no-time-waiver in-custody felony
jury trials, of which 104 were past their last day. By September 2, 2022, there
were 204 such trials, of which 151 were past their last day. (Exh. E, Kroll
Dec., ¶ 320, PE0309–0310; Exh. 10, no-time-waiver trial lists, Sep. 2, 2022,
PE1202.) The number of in-custody cases past their last day has never fallen
below 104 since reopening: it reached almost 200 in February, before falling
to 130 in July and then increasing again. (Exh. E, Kroll Dec., ¶ 32, PE0309–
0310.) Overall, felony in-custody cases past their last day have increased 45%
since June 2021.
58. As of September 2, 2022, out of the 562 pending no-time-waiver trials
past their last day, just eight had last days before June 28, 2021, when trial
courtrooms reopened. (Exh. 10, PE1203–1204.) Only a quarter of them had
last days before April 1, 2022. (Id. at PE1203–1212 [105 felony trials],
PE1227–1229 [36 misdemeanor trials].)

29
59. Other superior courts used the time since reopening to clear their
backlogs of criminal cases past their statutory last day for trial. In Contra
Costa County, the backlog was cleared in April 2022. (Exh. 45, Declaration
of Diana Garrido, ¶ 6, PE1559.) Marin County eliminated its backlog in
January 2022. (Exh. 46, Declaration of Christine O’Hanlon, ¶ 5, PE1562.)
Alameda County’s backlog was cleared in February 2022. (Exh. 48,
Declaration of Patrick Jensen, ¶ 6, PE1811; see also People’s Exh. 8, Alameda
Public Records Request Response, p. 2, PE1751.) In Sacramento County, the
backlog was cleared in July 2022. (Exh. 49, Declaration of David Lynch, ¶ 6,
PE1814.) San Diego County Superior Court is “almost back to normal,” and
is no longer continuing cases on its own motion. (People’s Exh. 12,
Declaration of Maria Shih, ¶ 2, PE1823.) And in Los Angeles County—the
largest local justice system in the United States, serving a population of
almost 10 million people—the backlog was cleared in March 2022. (Exh. 50,
Declaration of Nick Stewart-Oaten, PE1816.)
60. Rather than relying on generic “good cause” findings, as respondent
court did, most superior courts sought local emergency orders from the Chief
Justice under Government Code section 68115, which permits last days for
trial to be extended by thirty days at a time. (Exh. 44, court emergency orders
list, PE1513.) As of September 15, 2022, only Riverside and Madera Counties
still had active emergency orders: the other superior courts had all stopped
requesting them from the Chief Justice, signaling that they no longer needed
last day extensions in order to try cases in a timely manner. 11

11The prosecution presented evidence of only one county—Riverside—

facing backlog problems comparable to San Francisco’s. (People’s Exh. 13,
Declaration of Michelle Paradise, ¶ 5, PE1825 [describing backlog].) But the
presiding judge of that court recently determined that it was no longer
necessary to seek emergency orders delaying trial deadlines. (Exh. 52,

30
 G. Estrada faces harsh custody conditions at the San Francisco
County Jail
61. Estrada has been in custody since August 23, 2021. (Exh. 51, jail time
report, PE1818.) While courtrooms sat empty and unused, inmates awaiting
trial faced harsh, solitary-like conditions at the San Francisco County Jail that
damage their mental health.
62. Felipe Preciado, who is detained pretrial in County Jail 3 in San Bruno,
writes that he is often confined in a small, dirty, poorly ventilated cell with
another inmate for the entire day, without even time out of the cell to shower.
(Exh. 37, Declaration of Felipe Preciado, ¶¶ 4–5, PE1477.) On days when he
is allowed out, he gets a maximum of one hour’s “walk time,” and sometimes
as little as fifteen minutes. (Id. at ¶¶ 6–7, PE1477–1478.) He tries to keep in
touch with his five children, but because of strict limitations on phone time,
it is rare that he gets a significant amount of time to talk to them. (Id. at ¶¶
9–10, PE1478.) The poor diet, lack of exercise and inadequate medical care
harm his physical health. (Id. at ¶¶ 11–13, PE1478–1479.) And the isolation,
lack of natural light, lockdown conditions, and uncertainty about when trial
will come, cause him stress, anxiety and depression. (Id. at ¶¶ 14–16,
PE1479.) He writes: “Being here has completely changed me . . . I’m filled
with despair.” (Ibid.)
63. Alexandra Andrews, who is detained pretrial in County Jail 2 in San
Francisco, writes that she was subjected to weeks-long lockdowns where she
was not allowed out of her cell at all. (Exh. 38, Declaration of Alexandra
Andrews, ¶¶ 4–5, 12, PE1482–1483.) She has not been able to contact her
family because she was not given a working phone pin number. (Id. at ¶ 7,

memorandum from presiding judge of Riverside County Superior Court,

PE1856.)

31
PE1483.) As well as suffering from migraines, muscle spasms and other
physical health conditions, her experience in custody has made her
“depressed, anxious, and panicky.” (Id. at ¶ 17, PE1484.) She writes: “It
feels like my mental stability is continuing to degrade . . . I feel like I’m dealing
with everything on my own.” (Id. at ¶¶ 16–17, PE1484.)
64. Bartolome Flores, who was detained pretrial in County Jail 3, writes
that he is only allowed out of his cell for one hour a day, but that conditions
in the pod are so tense that he sometimes chooses to stay in his cell to avoid
trouble. (Exh. 39, Declaration of Bartolome Flores, ¶ 4, PE1487.) At times,
he has been under 24-hour lockdown in his cell. (Id. at ¶ 5, PE1487.) Although
he tries “not to think about being depressed,” he is having trouble sleeping.
(Id. at ¶¶ 9, 11, PE1487–1488.)
65. Elmer Martinez-Castro, who is detained pretrial in County Jail 3,
writes that he was confined in a small cell with another inmate for months,
with only 45 minutes out of his cell per day. (Exh. 47, Declaration of Elmer
Martinez-Castro, ¶ 4, PE1807.) Because of the lockdown conditions and
limited phone time, everyone in the pod is “stressed out,” and “fights break
out all the time over minor things.” (Id. at ¶ 10, PE1808.) A few days before
writing, while playing ball, Martinez-Castro was attacked by another inmate,
who hit him in the left eye. (Id. at ¶ 11, PE1808.) He fought back to defend
himself. (Ibid.) Since there were no deputies on the floor, it took them several
minutes to arrive: when they did, they fired at him with an electric shock
weapon and took him to a pod where he is kept in solitary confinement 24
hours a day. (Id. at ¶¶ 12–13, PE1808.)
66. These conditions are not a temporary aberration, but are similar to
those described by inmates a year ago. (See Exh. 40, Declaration of Tyler
Ramirez, ¶¶ 4–15, PE1491–1492; Exh. 41, Declaration of Steven Kloster, ¶¶

32
5–9, PE1495–1496.) Inmates’ reports of frequent lockdowns are also
consistent with information in the public domain about longstanding staff
shortages in the San Francisco Sheriff’s Office. (Exh. 34, SFDSA press
release: “SF Jail Headed for Disaster,” PE1459, p. 2 [reporting staffing at
70% of requirements]; Exh. 35, Mission Local news article: “Staff shortages
nix programming in SF jails; guards warn they can’t take influx”, pp. 2–4,
PE1465–1467 [describing years-long staffing shortfalls].) In response, the
Sheriff has implemented a pilot program in which out-of-cell time is
drastically reduced, and a single deputy supervises two pods at once from a
“crow’s nest” platform between the two pods. (Ibid.; Exh. 47, Martinez-
Castro Dec., ¶ 5 [describing “crow’s nest” position of deputy].) In a letter
to the Sheriff, and in a grievance filed with the Public Employment Relations
Board, the San Francisco Deputy Sheriffs’ Association warned that this
crow’s nest pilot program “creates a dangerous environment,” because it
leads to increased response time to emergencies, less walking time for
inmates, and less frequent opportunities to perform safety checks to make
sure inmates are breathing. (Exh. 32, letter from SFDSA to Sheriff, p. 2,
PE1393; Exh. 33, Unfair Practice Charge, pp. 2–4, PE1403–1405.)
67. Prof. Terry Kupers is a board-certified psychiatrist, Institute
Professor at the Wright Institute, and Distinguished Life Fellow of the
American Psychiatric Association. (Exh. 43, Declaration of Terry A. Kupers,
PE1502, ¶ 1, PE1502.) He has written numerous books and articles on the
psychiatric effect of jail and prison conditions, as well as testifying many
times in state and federal courts and serving as a consultant to the U.S.
Department of Justice. (Id. at ¶¶ 1–2, PE1502.) After studying the evidence
detailed above, he opined that the custody conditions at the County Jail
“pose a grave risk to the mental health of any inmate exposed to them over

33
an extended period of time.” (Id. at ¶ 12, PE1509.) He wrote that the
psychological symptoms described by Preciado and Andrews are “consistent
with the typical effects of extended solitary confinement”—defined as
isolated confinement in a cell for 22 hours or more a day, whether or not the
inmate is housed alone or shares the cell with another person. (Id. at ¶¶ 8, 13,
PE1506, PE1509.) He noted that “double-celling does not mitigate the
harmful effects of isolation, but in fact may exacerbate these effects because
of the interpersonal tension generated by such extended close contact.” (Id.
at ¶ 8, PE1506.) He concluded: “there is a huge risk of very serious
psychological damage from the de facto solitary confinement at the San
Francisco Jail.” (Id. at ¶ 15, PE1510.)

V. Reasons for granting the writ

68. For the reasons given in the attached memorandum of points and
authorities, respondent court abused its discretion in finding that the
prosecution had proved that good cause existed for continuing Estrada’s
trial.
69. This petition is timely, having been filed within sixty days of
respondent court’s order denying the motion to dismiss.
70. Since his case was continued, Estrada was diligent in seeking relief in
respondent court and this court, but encountered delays which were not
attributable to him. Exhibit 1, the daily court reports which establish
respondent court’s underuse of trial courtrooms in July and early August,
was not available in complete form until August 26, 2022. Other critical
evidence, including the complete judicial vacation schedules, latest no-time-
waiver trial lists and expert declaration, was not available until late August or
September. (See e.g. Exh. 2, PE972 [discovered Aug. 23, 2022]; Exh. 10,
PE1202 [discovered Sept. 14, 2022]; Exh. 43, PE1501 [executed Sept. 12,

34
2022].) Estrada’s motion hearing was also delayed because the respondent
court has a policy of refusing to schedule more than nine section 1382
motions per week, and numerous other defendants filed such motions.
71. The transcript of the motion hearing has not yet been prepared,
despite being ordered on October 14, 2022. To avoid further delay, and give
this Court adequate time to consider the request for a stay, Estrada files this
petition now and will lodge the transcript when it is available. The transcript
is expected to be available within two weeks.
72. Estrada is irreparably harmed by respondent court’s order, since he
must wait in custody for trial under harsh, solitary-like conditions despite
being entitled to a dismissal. He has no plain, speedy or adequate remedy at
law for respondent court’s order. In particular, a postconviction appeal does
not provide an adequate remedy for speedy trial claims, since Estrada would
be required to prove that the section 1382 violation prejudiced his defense at
trial: this requirement “represents a considered policy judgment that
defendants should seek review of speedy trial claims before trial.” (People v.
Johnson (1980) 26 Cal.3d 557, 574–575; accord People v. Wilson (1963) 60
Cal.2d 139, 152 [“proper remedy” for erroneous denial of section 1382
motion is “petition for writ of mandate prior to the commencement of
trial”].)

VI. Application to stay jury trial

73. This Court should stay the proceedings below to prevent Estrada from
being tried before the Court is able to decide this petition. (See Elias v.
Superior Court (2022) 78 Cal.App.5th 926, 932 [trial stayed to enable
consideration of speedy trial claim]; Stabio v. Superior Court (1994) 21
Cal.App.4th 1488, 1493 [same]; Ibarra v. Municipal Court (1984) 162
Cal.App.3d 853, 856 [same]; Lewis v. Superior Court (1981) 122 Cal.App.3d

35
494, 496–497 [same].) Absent a stay, Estrada would suffer the irreparable
harm of a trial and potential conviction despite being entitled to a dismissal
under section 1382; he would be deprived of an effective remedy, since he
would not be entitled to reversal on appeal absent a showing of trial prejudice;
and there would be a risk that this petition would be rendered moot.

Prayer for relief

Estrada requests that this Court—
a. issue a stay to prevent respondent court from sending this
case to trial;
b. issue a peremptory writ of mandate, directing respondent
court to set aside its order denying Estrada’s motion to
dismiss and to enter a new order dismissing the case;
c. issue a peremptory writ of prohibition, directing respondent
court not to take any further action in the case except for
entering an order dismissing the case;
d. issue an alternative writ of mandate or prohibition, directing
respondent court either to grant the relief above or to show
cause before this Court why relief should not be granted;
e. grant any other relief the Court deems just and proper.

Respectfully submitted,

_____________________
Oliver Kroll
Attorney for Petitioner

36
 verification

I, Oliver Kroll, declare:

I am an attorney licensed to practice in California. I am employed by

the San Francisco Public Defender. I represent petitioner Miguel Angel
Estrada. I know the facts alleged in this petition to be true based on my
representation of my client. I, rather than my client, am verifying this petition
because the facts it contains are more within my knowledge than his. (See
Code Civ. Proc., § 446, subd. (a).)

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Executed on November 1, 2022, at San Francisco, California.

_____________________
Oliver Kroll

37
 memorandum of points and authorities

I. Standard of review
Under Penal Code section 1382, if a person charged with a felony is
not brought to trial within sixty days of being arraigned on the information,
the case must be dismissed unless good cause for the delay is shown. (§ 1382,
subd. (a)(2).)12 This statute interprets and supplements the state
constitution’s speedy trial guarantee. (People v. Martinez (2000) 22 Cal.4th
750, 766.) It “constitutes [. . .] a legislative determination that a trial delayed
more than 60 days is prima facie in violation of a defendant’s constitutional
right.” (Sykes v. Superior Court (1973) 9 Cal.3d 83, 89.) For that reason, the
prosecution has the burden of justifying a delay past the sixtieth day, even if
the continuance was on the court’s own motion. (People v. Hajjaj (2010) 50
Cal.4th 1184, 1197.) No showing of prejudice is needed: any unexcused delay,
even one day’s worth, entitles the defendant to a dismissal. (Martinez, p. 766;
Hajjaj, p. 1204.)
A trial court’s order denying a motion to dismiss pursuant to section
1382 is reviewed for abuse of discretion. (Hajjaj, supra, pp. 1197–1198.) The
order may be reviewed by a petition for a writ of mandate or prohibition.
(People v. Johnson (1980) 26 Cal.3d 557, 573 fn. 18.) When seeking pretrial
relief, unlike on appeal, a defendant need not show prejudice resulting from
the violation of the speedy trial right. (Id., p. 574.) This rule “represents a
considered policy judgment that defendants should seek review of speedy
trial claims before trial.” (Id., pp. 574–575.)

12 All statutory references are to the Penal Code unless otherwise stated.

38
II. More than a year after reopening, covid-19 can no longer serve
as blanket good cause for chronic delays caused by improper
court administration
The prosecution did not meet its burden of proving that the covid-
19 pandemic justified this trial delay, more than a year after the court’s full
reopening. Respondent court’s contrary conclusion was an abuse of
discretion for four reasons. First, it was the court’s own chronic, needless
underuse of its trial resources over thirteen months, not covid-19-related
restrictions or staffing problems, that caused its backlog to swell as other
superior courts returned to normal. Second, judicial vacations are not good
cause for delay: the large number of dark days due to vacations from April to
August, including on the day this case was continued, undermine the court’s
good cause finding. Third, the prosecution’s effort to lay blame for the
backlog at the feet of individual criminal defendants—either for failing to
waive their right to a speedy trial in large enough numbers, or for failing to
plead guilty promptly enough—is unsupported both legally and factually.
Fourth, respondent court’s good cause finding fails to account for the real and
lasting psychological harm its trial delays are causing to people forced to wait
in jail under lockdown conditions.

A. covid-19 does not excuse the court’s massive underuse of its trial
resources over thirteen months
“[W]hen the lack of a judge or courtroom available to timely bring a
criminal defendant to trial is fairly and reasonably attributable to the fault or
neglect of the state, that circumstance does not constitute good cause to
continue the defendant’s trial for purposes of section 1382.” (People v.
Engram (2010) 50 Cal.4th 1131, 1138.) For this purpose, “the state” refers
not only the prosecution, but the judiciary: delays caused by “improper court

39
administration” are not good cause for failing to bring a defendant to trial
within the time limits of section 1382. (People v. Johnson (1980) 26 Cal.3d 557,
570–571.) In particular, there is no good cause for a delay if it results from a
failure “to provide enough courtrooms or judges to enable [a] defendant to
come to trial within the statutory period.” (Id. at p. 571; accord People v.
Echols (1954) 125 Cal.App.2d 810, 815, disapproved on another point in People
v. Wilson (1963) 60 Cal.2d 139; Stewart v. Superior Court (1955) 132
Cal.App.2d 536, 538; Herrick v. Municipal Court (1957) 151 Cal.App.2d 804,
810.) “Unreasonable delay in run-of-the-mill criminal cases cannot be
justified by simply asserting that the public resources provided by the State’s
criminal justice system are limited and that each case must wait its turn.”
(Johnson, supra, pp. 571–572.)
Although chronic congestion is not good cause, a trial delay may be
justified if it results from “exceptional circumstances.” (Engram, supra, pp.
1163–1164.) So, for example, there is good cause for a continuance where the
outbreak of an infectious disease makes it presently impossible to hold a trial.
(In re Venable (1927) 86 Cal.App. 585, 587; Stanley v. Superior Court (2020)
50 Cal.App.5th 164, 170; see also People v. Tucker (2011) 196 Cal.App.4th
1313, 1314 [good cause where prisoner was under quarantine for h1n1
influenza virus].) Likewise, delays due to backlogs are excusable if they result
from “unique, nonrecurring events” which “have produced an inordinate
number of cases for court disposition.” (Johnson, supra, 26 Cal.3d at p. 571.)
In Hernandez-Valenzuela v. Superior Court, this Court held that good cause
existed for a continuance in the weeks immediately following reopening, after
respondent court had just emerged from “fifteen months of diminished or no
capacity to conduct criminal jury trials” because of strict public health
regulations, and the majority of the court’s backlog still consisted of trials

40
whose last days fell during that fifteen-month period. (Hernandez-Valenzuela
v. Superior Court (2022) 75 Cal.App.5th 1108, 1128; accord Elias v. Superior
Court (2022) 78 Cal.App.5th 926, 940 [good cause for continuance three
weeks after reopening, where section 1382 deadlines had been extended by
local emergency order].)
But delays due to “exceptional circumstances” must be just that—
exceptional. They cannot become a daily routine. As this Court recognized
in Hernandez-Valenzuela, respondent court “cannot turn to the pandemic
and ‘perpetually cite “exceptional circumstances” to avoid dismissal under
section 1382.’” (Hernandez-Valenzuela, supra, 75 Cal.App.5th at p. 1135.) It
warned that the leeway it had granted respondent court to deal with its
backlog would not last for ever: “At some future point, should respondent
court’s backlog persist while courtrooms remain dark and unused for long
stretches of time, a backlog that originated with the pandemic could
transform into one that persists or grows due to court administration, or the
nonuse of available judicial resources.” (Ibid.) It emphasized the limit of its
holding: “[W]e only decide that on August 16, September 2, and September
24, [2021,] that point was not reached, and we decline to adopt any outside
time limitation or metric that establishes such a point.” (Ibid.)
Respondent court is now long past that point. One year on from the
trial delays at issue in Hernandez-Valenzuela, “emergency” continuances
have become a permanent feature of San Francisco’s criminal justice system.
But they have not been matched by an emergency effort to clear the backlog.
The court is still putting trials over for months, relying on a boilerplate good
cause finding that it issues in every case. It has not opened a single additional
trial courtroom at the Hall of Justice “beyond the number that was standard
pre-pandemic,” despite being urged to do so. (Hernandez-Valenzuela, supra,

41
at pp. 1135–1136.) And the few trial courtrooms it has are still sitting “dark
and unused for long stretches of time.” (Id. at p. 1135.) Departments 10, 13,
16, 19, 21, 24, 25, 28 and 29 each experienced long hiatuses where virtually
no trials were assigned; some of these gaps lasted for months. (Ante, ¶ 37,
pp. 20–22.) Astonishingly, over the thirteen months since reopening, the
court only utilized fifty-five percent of its total criminal trial capacity: on an
average day throughout that thirteen-month period, a visitor to the Hall of
Justice would have found only six of eleven trial courtrooms actually trying
cases, with the other five handling nontrial matters or sitting locked and
empty. (Exh. E, Kroll Dec., ¶¶ 8, 13 PE0303–0304, PE0306.) From July 2021
through March 2022, the trial courtroom occupancy rate hovered around
fifty or sixty percent, never exceeding seventy percent in any single month.
(Id. at ¶ 8, PE0304.) On average, respondent court was using less than ten
percent of its sixty-five departments to hold criminal jury trials—a
“shortchanging” of the criminal docket that is even more extreme than those
condemned in Echols and Stewart. (Engram, supra, 50 Cal.4th at pp. 1156–
1157; Echols, supra, 125 Cal.App.2d at pp. 815–816 [finding speedy trial
violation where four of twenty-three departments used to try criminal cases];
Stewart, supra, 132 Cal.App.2d at p. 538 [finding speedy trial violation where
eight of fifty-nine departments used to try criminal cases].)
The situation got even worse in the four months leading up to the
continuance of Estrada’s case: trial courtrooms were shuttered as multiple
trial judges simultaneously went on vacation, and the court failed to assign
retired, visiting or civil judges to fill the trial gap. As a result of this underuse,
while other counties eliminated the remnants of their covid-19-related
backlogs, respondent court’s backlog has ballooned, growing by more than
half since June last year. The overwhelming majority of that backlog now

42
consists of cases which passed their last day after respondent court’s full
reopening. Just eight out of the court’s 562 overdue trials had last days before
June 28, 2021; only a quarter had last days before April 1, 2022. (Exh. 10, no-
time-waiver trial lists, Sep. 2, 2022, PE1203–1204, PE1203–1212, PE1227–
1229.) In other words, unlike in Hernandez-Valenzuela, the court’s current
backlog is not a hangover from covid-19-related courtroom closures which
produced an “inordinate number of cases for court disposition” (Hernandez-
Valenzuela, supra, pp. 1125, 1130): rather, it is the combined result of
courtroom closures due to judicial vacations and a remarkably inefficient trial
assignment system, which let almost half the court’s trial capacity sit unused
over the course of more than a year.
The prosecution sought to blame the courtroom underuse on staffing
problems caused by spikes in covid-19 infection. (Exh. F, pp. 13–14,
PE1579–1580.) The evidence refutes this claim. According to the court’s own
records, out of the 296 occasions from April 1 to August 8, 2022 on which a
courtroom was empty, only six dark days—representing 2% of the total—
were caused by covid-19 protocols, courtroom capacity limits or “staffing”
issues. (Ante, ¶¶ 42–43, p. 23–24.) A further 7% of the dark days were due to
judges’ medical leave: the proportion of this leave attributable to covid-19
infection or exposure is not known. (Ibid.) On the other hand, 75% of the dark
days were due to vacations, official business and duty judge responsibilities.
(Ibid.) These statistics hardly support the notion that covid-19-related
staffing problems were to blame for the continuance of Estrada’s trial.
Nor can the courtroom underuse be justified by pointing to staffing
problems before April 2022. In its written order finding good cause for a
continuance, respondent court stated that “the new variants” caused a
shortfall of bailiffs from “early January of 2022” until “March of 2022,”

43
resulting in courtroom closures. (Exh. C, p. 9, PE0027.)13 But that would
account, at most, for three months of reduced capacity. It cannot explain the
court’s sustained underuse of courtrooms over the thirteen months from
reopening. The prosecution offered no evidence of how many courtrooms
were put out of action by this shortage: the daily court reports do not help its
case, since they show only a scattering of courtrooms that were listed as dark
for this reason.
Respondent court also relied on a recent “outbreak” of covid-19 at
the Hall of Justice in support of the continuance. (Exh. C, pp. 10–11,
PE0028–0029.) But an “outbreak”—defined as more than three covid-19
cases at a worksite within fourteen days—simply means that the worksite
must report the matter to the local health department and that employees
must wear masks and test regularly for infection.14 It does not require the
closure of any courtroom, and so cannot justify delaying trials for months.
None of this is to suggest that covid-19 has ceased to have any
impact. Clearly, it will pose challenges to every part of California’s
government and economy for years to come. But it no longer justifies blanket
“emergency” continuances of every trial on the calendar, especially when
courtrooms sit unused for weeks and months, judicial emergency orders have

13 Respondent court did not update its boilerplate good cause findings to
show when the shortage actually ended. Although it was issued in July
2022, it states: “The Court was informed by the Sheriff’s command staff
that the bailiff shortage is anticipated to continue through March of 2022.”
(Ibid.) But it is clear from the evidence Estrada has presented that any
shortage of bailiffs did not last into April 2022: no courtrooms were listed as
dark due to staffing problems during that month.
14 San Francisco Dept. of Human Resources, “Managing

Outbreaks/Multiple Infections of COVID-19” (July 25, 2022)

<https://sfdhr.org/sites/default/files/documents/COVID-19/COVID-19-
Managing-Outbreaks-Multiple-Infections.pdf> [as of Oct. 30, 2022.]

44
been lifted, public health regulations have been relaxed for more than a year,
and other superior courts across the state—including courts in major urban
counties such as Los Angeles, San Diego, Sacramento and Alameda—have
cleared their backlogs and are now operating normally. In Bullock v. Superior
Court (2020) 51 Cal.App.5th 134, in the context of preliminary hearings, this
Court found good cause for a continuance lacking because the prosecution
had failed to show a “nexus between the conditions created by the pandemic
and the purported need to delay the hearing.” (Id. at p. 154.) The same is true
here: the evidence shows that, unlike in the weeks following reopening, the
backlog is now overwhelmingly attributable to respondent court’s chronic
failure to keep its “trial” courtrooms open and stocked with trials, not to
emergency public health measures associated with the covid-19 pandemic.

B. Judicial vacations are not good cause for a trial delay

A judge’s vacation is not good cause for a continuance. (Rhinehart v.
Municipal Court (1984) 35 Cal.3d 772, 783.) In Rhinehart, the trial court
ordered a continuance for “almost a week” because a single judge was on
vacation, and the courtroom to which the case had been assigned instead was
busy with another trial. (Ibid.) The Court of Appeal affirmed the dismissal on
speedy trial grounds, holding that “a shortage of judges . . . because one judge
was on vacation” did not constitute “exceptional circumstances” justifying
a continuance past the deadline imposed by section 1382. (Ibid.)
Here, the lack of good cause is even more glaring. The evidence shows
that 176 court days were lost to judicial vacations over the four-month period
from April 1 to August 8, 2022—the equivalent of shutting down two whole
trial departments. (Ante, ¶¶ 42, 44, pp. 23–24.) Judicial vacations accounted
for more than half of the 296 dark days during that period, and it was a
common occurrence for four or five trial courtrooms to be simultaneously

45
closed because judges were on vacation. (Ante, ¶¶ 49–51, pp. 26–27.) With
so much of its trial capacity going to waste, it is not surprising that the court’s
backlog continues to grow. On the date Estrada’s case was continued, three
courtrooms were shut down—one because the judge was on an “excused
absence,” another because the judge was away on “official business,” and a
third because the judge was covering for a colleague on personal leave.15 The
prosecution dismissed these absences as a “mere snapshot.” (Exh. F, p. 16,
PE1582.) In fact, they were part of a recurrent pattern.
Judges are, of course, entitled to time off work, and cannot be
expected to preside indefinitely over back-to-back trials. But that does not
mean that a judicial vacation constitutes an “exceptional circumstance” that
justifies exceeding a criminal defendant’s speedy trial deadline. (Rhinehart,
supra, at p. 783.) Respondent court could have followed this Court’s
suggestions in Hernandez-Valenzuela by reassigning judges from the Civic
Center Courthouse, or by calling in retired or visiting judges to fill the gap.
(Hernandez-Valenzuela, supra, 75 Cal.App.5th at pp. 1135–1136.) And rather
than taking trial judges away from their assignments to cover for absent
colleagues, it could have used judges assigned to non-trial departments.
Instead, it let trial courtrooms sit vacant while more than a hundred people
waited in custody.

15Over the standing objection of Estrada’s counsel, respondent court

included the following sentence in its order denying the motion to dismiss:
“Additionally, on July 26, 2022, court personnel were unavailable to staff
courtrooms because of covid-19.” (Exh. K, PE1863.) This assertion is
wholly unsupported by the evidence. The daily court reports and leave
calendars prove that it was routine absences, not covid-19-related staff
shortages, that caused the dark days on July 26. When counsel raised this
point with the court, it remarked: “I still believe the sentence is appropriate
at this time. I will continue to keep it in the orders.” (Exh. L, PE1865.)

46
 Vacations were not the only cause of dark days. Courtrooms were also
empty because trial judges were on leave for “official business” or
performing duty judge responsibilities. Such absences do not constitute
“exceptional circumstances” that justify delaying a trial past its last day. (See
Lewis v. Superior Court (1981) 122 Cal.App.3d 494, 498.) In Lewis, multiple
judges were unavailable because they were attending a training program
sponsored by the Judicial Council “for which reservations had been made
months in advance.” (Ibid.) The Court of Appeal held that the training
program was not good cause under section 1382, since the judges could have
been recalled to handle jury trials. (Ibid.) It commented: “Much as
continuing education for judges is a desideratum, we must conclude that the
trial court erred in favoring those benefits by denying the rights of these
defendants to be tried within the time limits specified by Penal Code section
1382.” (Ibid.) Criticizing the trial court’s “tacit choice” to prioritize training
sessions over speedy trial rights, it commented: “[w]e do not believe the trial
court is permitted to make such a choice and then justify it by asserting
‘exceptional circumstances.’” (Id. at p. 499.) Here, respondent court could
have had civil judges review warrants and sign protective orders, exempting
criminal trial judges from these “duty judge” tasks. It could have deferred its
trial judges’ “official business” leave until the backlog had been cleared. Or
when such travel was unavoidable, it could have arranged coverage. Instead,
it chose to delay trials in order to accommodate routine absences. Such a
choice does not amount to “exceptional circumstances” supporting good
cause under section 1382.

47
 C. Fewer defendants waiving time is a natural result of the backlog
and is not good cause for a trial delay
The prosecution argues that, because the backlog has led to an
increase in the number of defendants asserting their right to a speedy trial,
respondent court cannot be expected to accommodate them within the
statutory deadlines of section 1382. (Exh. F, pp. 18–19, PE1584–1585.) That
argument fails for two main reasons.
First, the Court of Appeal has squarely held that a reduction in the
number of time waivers does not justify continuing jury trials past their last
day. (Arreola v. Municipal Court (1983) 139 Cal.App.3d 108, 114.) In Arreola,
a large number of misdemeanor defendants set their cases for trial in response
to the district attorney’s “rigid sentencing policy.” (Id. at p. 112.) The Court
rejected the argument that the resulting congestion constituted “exceptional
circumstances” under section 1382. (Id. at p. 114.) The Court explained that
an “unprecedented demand for trial” could not excuse a failure to try cases
within the statutory deadline, since “our criminal justice system assumes
that the right to a jury trial will be exercised.” (Id. at p. 115.) It went on: “In
principle, the exercise of this right by all defendants should be expected.
Therefore, we cannot hold that the exercise thereof even in unprecedented
numbers can be called an exceptional circumstance. The state must stand
ready to provide a jury trial to every defendant. The state may not demand as
a price in exchange therefor that a defendant give up the right to a speedy
disposition of the cause.” (Ibid.) It also rejected the district attorney’s
argument that the public defender had deliberately sought to overwhelm the
court system, remarking: “[e]ach petitioner here did nothing more than
refuse to waive his or her constitutional right to a jury trial. Whatever the

48
motive behind that action, it was within each defendant’s right to exercise
it.” (Id. at p. 117.)
The prosecution sought to distinguish Arreola on the ground that it
dealt with ordinary congestion rather than a public health emergency. (Exh.
C, PE1585.) But that assumes the very point that it is required to prove. After
more than a year of lifted public health orders, reopened courtrooms and
chronic underuse of trial resources, respondent court’s docket congestion
has long become routine. It cannot be recast as an emergency simply by
pointing to the fact that criminal defendants are exercising their right to a trial
in larger numbers: under Arreola, that increase in speedy trial assertions does
not contribute to a finding of “exceptional circumstances,” and therefore
adds nothing to the prosecution’s argument.
Second, the increased demand is an unsurprising consequence of the
increased delay in holding trials. Because of respondent court’s failure to
clear the backlog, criminal defendants must now wait for months after their
last day to be tried. Most people charged with a crime would prefer not to
have the case hanging over their head for a lengthy and indefinite period,
especially if they are in custody. The only way to prevent that is to assert
one’s right to a speedy trial. Accordingly, defendants who might have chosen
to waive time when respondent court was operating normally are now
requesting a speedy trial in higher numbers. This natural and predictable
response to trial delays cannot be good cause for further trial delays. If it was,
respondent court would effectively be permitted to bootstrap its own
inefficient calendar management into good cause.16

16The prosecution argued that San Francisco faced a unique challenge

compared with other counties because so few defendants waived time. But
the only evidence it offered was a statement from an Alameda County

49
 When it denied Estrada’s motion, respondent court also pointed to
the number of cases that are “settled, dismissed or continued,” either after
being “advanced” on to the trial calendar or after being assigned out to a
department. (Exh. K, PE1862.) But it is common for cases to resolve on the
eve of trial, often after a key in limine motion is decided against the
government, a long-pending counter-offer is finally accepted, or trial
preparation forces the government to confront weaknesses in its case. That
is all the more true in San Francisco today, since section 1382 deadlines have
effectively been abolished: prosecutors face no trial pressure until the
moment they are sent out, and therefore have a reduced incentive to prepare
for trial or engage in meaningful pretrial plea bargaining. But this reality, far
from justifying trial delays, makes respondent court’s failure to clear its
backlog even harder to understand. If many cases resolve or are dismissed
upon being sent out, respondent court could have rapidly cleared its backlog
by assigning cases out to trial in quick succession: as soon as one trial
resolved, another could have been sent out to take its place, keeping the
courtroom busy and eliminating multiple lines from the backlog. If too many
of the cases that were “advanced” for trial ended up being dismissed or
settled, respondent court could have either abandoned this system or
advanced cases on to the calendar in larger batches. Instead, the court left
long gaps between trial assignments, allowed multiple trial judges to go on
vacation without arranging proper coverage, and allowed almost half its trial
capacity to sit unused over a thirteen-month period.

superior court clerk, indicating that the court’s historically high rate of
general trial waivers remained high throughout the pandemic. (People’s
Exh. 8, p. 2, PE1751.) It introduced no evidence about the post-2019 rate of
speedy trial assertions in Los Angeles, Marin, Contra Costa, Sacramento or
San Diego, all of which are no longer routinely continuing jury trials.

50
 Finally, the prosecution criticized Estrada below for “advocat[ing]
that the Court should have immediately assigned [his] case to trial,
irrespective of cases with earlier last days that were already pending.” (Exh.
F, p. 17, PE1583.) That mischaracterizes his argument. Trial courts have
discretion to determine the order in which cases are sent out, and Estrada
was not claiming that his trial was entitled to some special priority. If
respondent court had been working flat out to try cases over thirteen months,
as other superior courts in California did, but had not quite managed to
eliminate its backlog by the time Estrada’s case was called, a short
continuance would likely have been permissible under section 1382. But that
was not what happened. Respondent court violated Estrada’s right to a
speedy trial when it left nearly half of its trial capacity unused over thirteen
months, permitted numerous trial judges to simultaneously go on vacation
without arranging coverage, allowed its court congestion to grow and become
chronic, but then held that “exceptional circumstances” justified continuing
his trial.

D. Trial delays inflict severe psychological harm on people forced to

wait in jail
Although no showing of prejudice is required to prevail on a section
1382 motion, courts are required to consider prejudice to the defendant,
alongside the justification for the delay, in deciding whether good cause exists
to continue a trial. (Engram, supra, 50 Cal.4th at p. 1163.) Here, that prejudice
is profound. Like more than a hundred other people, Estrada has been waiting
in county jail past his last day, under extreme lockdown conditions that risk
grave damage to his mental health. Prof. Terry Kupers, a distinguished
psychiatrist with expertise in assessing the effect of jail and prison conditions
on inmates’ mental health, reviewed the evidence presented below and

51
concluded that “there is a huge risk of very serious psychological damage
from the de facto solitary confinement at the San Francisco County Jail.”
(Exh. 43, ¶ 8, PE1506.) But respondent court treated this serious showing of
prejudice as a non-issue, failing even to mention it in the order denying
Estrada’s motion to dismiss. Under section 1382, this trial delay would have
merited dismissal even if Estrada had been out of custody: in light of the
significant harm that the trial court’s delay is inflicting, the good cause
finding is even less supportable.

III. Conclusion
For thirteen months, respondent court left almost half its trial capacity
unused. It shuttered trial courtrooms not because of covid-19, but because
multiple trial judges were away on vacations or routine absences: on the day
Estrada’s case was continued, three courtooms were dark for this reason. As
a result, unlike other counties which have eliminated their covid-19
backlogs, San Francisco’s has grown with no end in sight. Meanwhile, more
than a hundred people wait in custody under deplorable conditions. This
mismanagement and chronic congestion fatally undermines the good cause
finding in Estrada’s case. Since the prosecution failed to meet its burden of
proving that “exceptional circumstances” justified a continuance of his trial,
this Court should issue a writ of mandate or prohibition.

Respectfully submitted,

_____________________
Oliver Kroll
Attorney for Petitioner

52
 word count certificate

I certify that the attached petition with memorandum of points and

authorities contains 13,377 words, not including the caption, index, tables,
verification, and this certificate.

Executed on November 1, 2022, at San Francisco, California.

_____________________
Oliver Kroll

53