On July 12, 1977, defendant Johnson was convicted of three counts of robbery (Pen. Code, § 211).
Section 1382, which interprets the state constitutional right to a speedy trial (see Cal. Const., art. I, § 15), provides that absent a showing of good cause, a defendant accused of a felony is entitled to a dismissal of the charges against him if he is not brought to trial within 60 days of the filing of the information. Defendant Johnson was not brought to trial within this statutory period. Instead, the trial court, at the request of the public defender, and over defendant's express objection, repeatedly continued the case, with the result that trial commenced 144 days after the filing of charges. Defendant raised his speedy trial claim in the trial court, but did not seek pretrial appellate intervention.
We summarize briefly our conclusions respecting the speedy trial issue. We conclude, first, that when a client expressly objects to waiver of his right to a speedy trial under section 1382, counsel may not waive
In discussing defendant's contention that substantial evidence does not support his conviction, we take the opportunity to review and define the California standard for review of this contention in light of the recent United States Supreme Court decision in Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781].
1. The trial court's failure to bring defendant to trial within 60 days from the filing of the information does not constitute reversible error.
Independently of the parallel federal constitutional provision (U.S. Const., 6th Amend.) the California Constitution in article I, section 15 guarantees a criminal defendant's right "to a speedy public trial." The Legislature has separately established, among the basic rights of a defendant in a criminal action, the defendant's entitlement "to a speedy and public trial." (§ 686, subd. 1.) As the Legislature has made clear, "The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time.... It is therefore recognized that both the people and the defendant have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both the prosecution and the defense, to expedite such proceedings to the greatest degree that is consistent with
Although the federal constitutional right to a speedy trial may indeed have an "amorphous quality" (Barker v. Wingo (1972) 407 U.S. 514, 522 [33 L.Ed.2d 101, 112, 92 S.Ct. 2182]), our own Legislature has defined certain time periods beyond which the right suffers infringement and has simplified our courts' application of the right. Section 1382 provides: "The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... [¶] 2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or the filing of the information ...; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, ... and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter."
In applying section 1382 to the present case, three questions arise: (1) Were the postponements in the present case granted at the request of defense counsel but over defendant's express objection, made "at the request of the defendant or with his consent?" (2) Did the trial court have "good cause" for denying defendant's motion to dismiss for lack of a speedy trial? (3) Was defendant prejudiced by the delay in bringing his case to trial? Initially we set forth the procedural history of this case as it bears on defendant's claim that he was denied a speedy trial; we then analyze the three issues in the order listed.
On February 2, 1977, defendant Johnson, represented by the public defender, and codefendant Sumlin were arraigned in superior court and entered pleas of not guilty. Trial was set for March 23. On that date, defendant Johnson appeared in court with his counsel, Deputy Public Defender Dennis Cohen. Cohen explained that he was presently engaged in the trial of another case and had no available date until May 6. The trial court viewed this explanation as an implied request for a continuance. Over defendant's objection, the court found "good cause" for the continuance and postponed trial until May 6.
On May 27, defendant filed a petition on his own behalf for writ of habeas corpus, seeking a dismissal on the ground that he had been denied a speedy trial. Defendant pointed out that his counsel "asked the court for and was granted two continuances without petitioner's consent or waiver or waiver of time that well exce[e]ded sixty days" after the filing of the information. The court summarily denied defendant's petition.
On July 12, after the presentation of evidence at trial,
Although defendant raised his claim of denial of a speedy trial by a pretrial writ of habeas corpus in the trial court, he did not seek pretrial appellate resolution of that issue. Following conviction, however, he appealed, asserting that the charges against him should have been dismissed for failure to bring the case to trial within 60 days from the filing of the information.
A. Counsel lacked authority to waive defendant's right to a speedy trial under section 1382.
The power of appointed counsel to control judicial strategy and to waive nonfundamental rights despite his client's objection (see Townsend v. Superior Court (1975) 15 Cal.3d 774, 781 [126 Cal.Rptr. 251, 543 P.2d 619] and cases there cited)
The foregoing conclusion, although derived from the ethical principle that an attorney owes an undivided loyalty to the interests of his client, appears to us equally essential to fulfill the objectives of section 1382. That section confers a right upon the defendant, but that right becomes meaningless if counsel can disregard defendant's views and interests and waive the right. Routine waivers to accommodate crowded calendars of defense counsel, moreover, defeat the public interest in speedy criminal trials.
The reasoning of Townsend v. Superior Court, supra, 15 Cal.3d 774, imposes no barrier to our conclusion that under the facts of the present case counsel could not waive defendant's statutory right to a speedy trial without defendant's consent. In Townsend, the court found that the consent of counsel alone without that of the client sufficed to satisfy section 1382. (See 15 Cal.3d at p. 780.) Our opinion described the exceptional circumstances under which counsel alone could not waive his client's rights under section 1382: if counsel were "ineffective" (p. 781), "inadequate" (p. 784), "lazy or indifferent" (ibid.). The Townsend majority concluded, however, that the case before it did not involve such exceptional circumstances, that defense counsel "is pursuing his client's best interests in a competent manner." (Id.)
The reasoning of Townsend, applied to the facts of the present case, leads to a result different than that of Townsend. Here counsel thrice sought postponements over the express objection of his client. In contrast to Townsend, he did not seek additional time to prepare the defense or to secure attendance of witnesses. On the record before us, defense counsel entertained no reason to believe delay would benefit defendant; since counsel knew that defendant was incarcerated pending trial, he knew that delay was probably contrary to the best interests of his client. Thus in seeking delay counsel was not "pursuing his client's best interests in a competent manner" (Townsend v. Superior Court, supra, 15 Cal.3d 774, 784). Instead, he was deliberately subordinating the statutory right of defendant Johnson to a speedy trial to the rights of other clients. Given his caseload and the conflicting demands upon his time, counsel may have reasonably arranged and ordered the interests of his clients. An attorney, however, owes undivided loyalty to each client (see ABA Code of Prof. Responsibility, EC 5-1); he does not enjoy the prerogative of weighing the rights of one client against those of another.
Under the circumstances of the present case we conclude that counsel, in view of his client's express objection, may not waive his right to a speedy trial under section 1382. Accordingly, the postponements
B. (3a) The record does not show "good cause" to deny defendant's motion to dismiss.
We come then to the ensuing issue of whether the congested calendar of appointed counsel can serve as sufficient "good cause" for a continuance and whether the court on that ground can avoid the designated dismissal. A defendant who is incarcerated pending trial, such as defendant Johnson, suffers particular harm when he is denied his right to trial within the statutory period.
Under section 1382, if a case is continued beyond the 60-day period without the request or consent of the defendant, the court must dismiss the action "unless good cause to the contrary is shown." In the present case the deputy public defender, who requested the continuances, did not move to dismiss. Defendant attempted to do so by writ of habeas corpus, but the trial court denied the writ. Thus no occasion arose at which the prosecution was compelled to meet its burden of showing good cause.
Although we perceive no objection to the principles stated in the preceding paragraph, we question those decisions which assume that court
A defendant's right to a speedy trial may be denied simply by the failure of the state to provide enough courtrooms or judges to enable defendant to come to trial within the statutory period. The right may also be denied by failure to provide enough public defenders or appointed counsel, so that an indigent must choose between the right to a speedy trial and the right to representation by competent counsel. "[U]nreasonable 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 await its turn." (Barker v. Wingo, supra, 407 U.S. 514, 538 [33 L.Ed.2d 101, 121], White, J., conc.)
The American Bar Association's Standards for Speedy Trial (ABA Project on Standards for Crim. Justice, Stds. Relating to Speedy Trial (Approved Draft 1968)) discusses the problem of delay caused by court congestion. It states that "delay arising out of the chronic congestion of the trial docket should not be excused.... [¶] But, while delay because of a failure to provide sufficient resources to dispose of the usual number of cases within the speedy trial time limits is not excused, the standard does recognize congestion as justifying added delay when `attributable to exceptional circumstances.' Although it is fair to expect the state to provide the machinery needed to dispose of the usual business of the courts promptly, it does not appear feasible to impose the same requirements when certain unique, nonrecurring events have produced an inordinate number of cases for court disposition." (Pp. 27-28.)
A facile assumption that conflicts in the calendar of the public defender constitute good cause for delay may result in denying indigent defendants the equal protection of the laws. As a dissenting opinion in Townsend v. Superior Court, supra, 15 Cal.3d 774, points out: "If an affluent defendant chooses to employ counsel who is involved in many other cases, then the courts, quite appropriately can require the defendant to wait until his selected counsel is ready for trial; if the delay is unacceptable to the defendant, he can always engage another, less burdened attorney. The indigent defendant, however, can exercise no such option. If the public defender who is appointed to represent him is already handling so many cases that the defendant's case must `trail' beyond the 60-day period, the indigent necessarily loses his statutory right to a speedy trial." (15 Cal.3d 774, 788, dis. opn. of Tobriner, J.)
The dismissal of charges when a defendant is denied his right to a speedy trial whether because of conflicting obligations of appointed counsel, congested court calendars, or other causes will not result in defendants' escaping trial for serious crimes they may have committed. Under section 1387, the dismissal of a felony charge for lack of a speedy trial is not a bar to further prosecution unless the charge has been previously dismissed on such grounds. We are confident that in cases in which there has been a prior dismissal, both court and counsel will give special attention to securing a speedy trial, granting the case priority if essential to that purpose.
The trial court on March 23, 1977, did not inquire into any available means of protecting defendant's right to a speedy trial. It accepted the public defender's recital of conflicting obligations without inquiring whether the conflict arose from exceptional circumstances or resulted from a failure of the state to provide defendant with counsel able to protect his right. The record of the proceeding of March 23 thus does not demonstrate good cause to avoid dismissal of the charges. The same reasoning applies to the continuance ordered by the court on May 6, 1977.
When defendant, on May 27, 1977, by writ of habeas corpus moved to dismiss the charges, the trial court summarily denied his petition.
(5) Defendant failed to prove prejudice arising from state's delay in bringing him to trial.
We come therefore to the question whether the abridgment of a defendant's right under section 1382 requires a reversal of the conviction. In People v. Wilson, supra, 60 Cal.2d 139, 151-152, we addressed this issue and concluded that a defendant raising the issue after conviction must prove not only unjustified delay in bringing his case to trial but also prejudice flowing from that delay.
We stated in Wilson that if a defendant seeks pretrial relief, he is "not required to affirmatively show that he [has] been prejudiced by the delay." (Id., at p. 151; see Scherling v. Superior Court (1978) 22 Cal.3d 493, 504 [149 Cal.Rptr. 957, 585 P.2d 219].) Upon appellate review following conviction, however, a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice: this court, in reviewing the judgment of conviction, must "weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself." (60 Cal.2d at p. 151.) Because defendant in Wilson failed to show that he was "in any way prejudiced by the setting of his trial for a date approximately two months beyond the last day to which he had consented," we concluded that the asserted errors did not warrant reversal of defendant's conviction, and affirmed the judgment. (Id., at p. 154.)
In the present case the record shows no prejudice to defendant arising from the delay. This is not a case in which the statute of limitations would have been a bar to new charges, or one in which a dismissal would itself have barred refiling. Defendant does not assert that the delay actually prejudiced his defense. Indeed, defendant by his silence on this issue essentially concedes the absence of prejudice, urging that we overrule Wilson and reverse his conviction without proof of prejudice.
We adhere, however, to the reasoning and holding in Wilson. That decision represents a considered policy judgment that defendants should
(8a) Substantial evidence supports defendant's conviction.
Defendant contends that substantial evidence does not support his conviction. The standard for appellate review of whether substantial evidence upholds a conviction has been discussed in many opinions. In view, however, of the recent decision of the United States Supreme Court in Jackson v. Virginia, supra, 443 U.S. 307, and the suggestion that the California standard of appellate review may be inconsistent with Jackson, we think it appropriate here to restate the California standard to demonstrate that it complies with federal constitutional requirements.
California decisions state an identical standard. In People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649], for example, we said that "The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation omitted.] The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." Similar language appears in People v. Reyes (1974) 12 Cal.3d 486, 497 [116 Cal.Rptr. 217, 526 P.2d 225]; In re Roderick P. (1972) 7 Cal.3d 801, 808-809 [103 Cal.Rptr. 425, 500 P.2d 1]; People v. Bassett (1968) 69 Cal.2d 122, 139 [70 Cal.Rptr. 193, 443 P.2d 777]; and many other cases. (See In re Frederick G. (1979) 96 Cal.App.3d 353, 363 [157 Cal.Rptr. 769] and cases there cited.) Evidence, to be "substantial" must be "of ponderable legal significance ... reasonable in nature, credible, and of solid value." (Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54]; People v. Bassett, supra, 69 Cal.2d 122, 139.)
The foregoing principles of judicial review are plainly consistent with Jackson v. Virginia, supra, 443 U.S. 307. Concern respecting the validity of the California standard arises, however, from language in other cases which could be interpreted to suggest that an appellate court should sustain a conviction supported by any evidence which taken in isolation might appear substantial, even if on the whole record no reasonable trier of fact would place credit in that evidence. Justice Elkington, in his dissenting opinion in People v. Blum (1973) 35 Cal.App.3d 515 [110 Cal.Rptr. 833], catalogs a number of examples. He notes, for example, cases which state that the appellate court need only determine whether there is "any substantial evidence, contradicted or uncontradicted" (35 Cal. App.3d at p. 522), and other cases which indicate that the court should not consider that part of the evidence which would "tend to defeat" the judgment below (Id.).
Such language is not necessarily incorrect for it may signify only the rule, recognized in Jackson v. Virginia, that the court should view the evidence "in the light most favorable to the prosecution" (443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789]). A formulation of the substantial evidence rule which stresses the importance of isolated evidence supporting the judgment, however, risks misleading the court into abdicating its duty to appraise the whole record. As Chief Justice Traynor explained, the "seemingly sensible" substantial evidence rule may be distorted in this fashion, to take "some strange twists." "Occasionally" he observes, "an appellate court affirms the trier of fact on isolated evidence torn from the context of the whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably believe the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. Had the appellate court examined the whole record, it
We do not believe it necessary to disapprove past decisions merely because they contain language which could be misconstrued to permit affirmance based on a standard of review which might contravene Jackson v. Virginia, supra, 443 U.S. 307. We think it sufficient to reaffirm the basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support: the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
Ms. Horton, the restaurant cashier testified that she instructed the sales clerk to hand over the restaurant's money to the robber armed with a shotgun. She also testified that defendant possessed a knife and that he took wallets and watches from some male customers. Ms. Horton's testimony, however, was exaggerated, and inconsistent in several respects from the testimony she gave at preliminary hearing.
Defendant testified in his own behalf. He said he met the three other men, whom he knew only by surname or nickname, at a liquor store and went with them to Jim Dandy to buy food. To his surprise the two men who accompanied him into the store started to rob the people there. He took no part in the robbery, but merely attempted to reassure and calm the victims. He left with the other men in the car because it was his car, and he did not want them to take it.
Even without the testimony of Ms. Horton, the testimony of Ms. Watley and the police officers establish a basis upon which a reasonable trier of fact could conclude that defendant was a participant, albeit an unusually kind participant, in an armed robbery. Defendant's own testimony largely corroborates Ms. Watley; his claim that notwithstanding outward appearances he really did not intend to aid in the robbery presents a defense which a reasonable jury could disbelieve. We conclude that substantial evidence supports the conviction, that is, that a reasonable trier of fact could find defendant guilty beyond a reasonable doubt.
(9a) The trial court erroneously admitted hearsay evidence, but that error did not prejudice defendant.
At defendant's trial, a police officer testified that Ms. Washington, the victim of the robbery charged in count II, told him that the robbers took a bracelet from her. Ms. Washington was subpoenaed as a witness, but did not appear at trial.
Defendant's counsel did not object to the officer's testimony, but counsel for codefendant Sumlin objected that the statement was hearsay. The trial court overruled the objection, saying that "The statement is not being offered for the truth of the content, but merely to establish that a statement was made."
To the contrary, Ms. Washington's alleged statement to the officer had no relevance other than to show that a bracelet had, in fact, been stolen from her. No exception to the hearsay rule sanctions admission of the testimony.
We find that the trial court erred in failing to grant defendant a hearing on his motion to dismiss charges under section 1382, and so denied defendant his right to a speedy trial. As we have explained, the state is in no position to deny a defendant his right to a speedy trial because the state is unable to provide counsel who can bring the case to trial within the statutory limits. If the state wants to incarcerate a citizen it cannot do so in violation of the state's own obligations and in violation of its own self-imposed conditions of confinement. The state must be a model of compliance with its own precepts.
The court below also erred in admitting certain hearsay testimony. We conclude, however that neither error prejudiced defendant's trial and conviction, and since substantial evidence supports that conviction, we find no ground for reversal.
The judgment is affirmed.
Mosk, J., and Newman, J., concurred.
Just four years ago in Townsend v. Superior Court (1975) 15 Cal.3d 774 [126 Cal.Rptr. 251, 543 P.2d 619], we decided, by a vote of five to two, the precise issue now before us. In comparing the two rights to speedy trial, constitutional and statutory, we carefully affirmed the distinction between them saying: "The right to a speedy trial is undeniably `as fundamental as any of the rights secured by the Sixth Amendment' (Klopfer v. North Carolina (1966) 386 U.S. 213, 223 [18 L.Ed.2d 1, 8, 87 S.Ct. 988]), and we have previously stated in dictum that counsel may not waive this constitutional [italics in original] right over his client's objections. (People v. Floyd  1 Cal.3d 694, 706-707 [83 Cal.Rptr. 608,
It is significant that the majority does not contend that compliance with the 60-day rule is constitutionally compelled. Defendant has a constitutional right to a speedy trial. He does not have a constitutional right to a trial within 60 days. The majority acknowledges, as it must, that the Legislature may at any time revise section 1382 to increase the permissible pretrial time period, and in the wake of the majority opinion it may well do so. It becomes obvious, accordingly, that the right to be tried within 60 days is not fundamental in any sense. The majority implicitly attempts to make it so by declaring that the right is "personal" to the defendant, and is not subject to waiver by counsel, stressing that "the postponements granted by the trial court in the present case at the instance of the public defender were not granted `at the request of the defendant or with his consent.'" (Ante, pp. 568-569.)
In so concluding, the majority again directly rejects the diametrically opposite position which we took in Townsend wherein we said that, "subject to certain limitations, ... consent of counsel alone without that of the client, satisfies section 1382, subdivision 2. While no previous California cases have considered the precise issue, the general import of other cases dealing with similar issues arising from related and parallel circumstances supports such a conclusion. In People v. Kirkpatrick (1972) 7 Cal.3d 480, 485-486 [102 Cal.Rptr. 744, 498 P.2d 992] for instance, we rejected a speedy trial claim despite the fact that the defendant had personally refused to waive time. Citing People v. Merkouris ((1956) 46 Cal.2d 540, 554 [297 P.2d 999], we held that counsel's consent to delays beyond 60 days is sufficient, at least where the continuances are reasonable. In People v. Wilson (1974) 40 Cal.App.3d 913
Even earlier, and in a more general context, in People v. Hill (1967) 67 Cal.2d 105, 114 [60 Cal.Rptr. 234, 429 P.2d 586], Justice Peters speaking for our unanimous court emphasized that, except where doing so would demonstrate incompetency of counsel, an attorney may ordinarily waive his client's rights as to matters of trial tactics and "control court proceedings." Indeed, as noted by Justice Peters, in the usual situation counsel's control over court proceedings is so general that he need not inform his client of the right before waiving it for him. (P. 115.)
Thus, the majority today not only reverses our own very recent Townsend holding but departs abruptly, as well, from substantial California precedent. Furthermore, it chooses to do so in a case in which the People were ready to proceed to trial at all times. Three of the four continuances in question were requested by defense counsel, the fourth by the court itself. In my view, a defective record thereby produces a bad rule causing an erroneous result.
The majority construes section 1382 to require a dismissal of the criminal proceedings in all cases where the defendant does not make a personal waiver of the statutory period or request his counsel to do so, unless "good cause to the contrary is shown." (§ 1382.) We thus arrive at the crux of the majority's decision. What is "good cause"? Admittedly displeased with overcrowded courtrooms and overworked public defenders, as are all observers of the criminal justice scene, the majority focusing its attention on incarcerated defendants holds that "chronic" crowding of the criminal court system does not constitute "good cause" for the purpose of section 1382. The majority pronounces that the "routine assignment of heavy caseloads to understaffed [public defenders'] offices, when such practice foreseeably will result in the delay of trials beyond the 60-day period without defendant's consent, can and must be avoided." (Ante, p. 572.) Apart from the ambiguities raised as to what assignments are "routine," what caseloads are "heavy," what offices are "understaffed," what practices "foreseeably" will result in delays, how are the "heavy caseloads" to be avoided?
It should be noted that although the majority speaks particularly of continuances requested because of "calendar conflicts," the reasoning of the opinion implicitly disapproves continuances which are requested by appointed defense counsel who may be unprepared for trial because of the press of his own workload. In reaching such a result, the current majority carefully ignores the broader public policy considerations which have been legislatively expressed by the people's representatives in section 1050 and previously discussed: "[I]t shall be the duty of all courts and judicial officers and of all counsel, both the prosecution and the defense, to expedite such proceedings to the greatest degree that is consistent with the ends of justice." (Italics added.)
By stripping from appointed trial counsel the authority to determine whether or not to request continuance of the trial date, the majority further heightens the direct "confrontation between two of the defendant's rights, the right to a speedy trial constitutionally guaranteed and statutorily implemented and amplified within the time framework of Penal Code section 1382 on the one hand, and his Sixth Amendment right to competent and adequately prepared counsel on the other. In such a situation, in the words of the appellate court in People v. Powell (1974) 40 Cal.App.3d 107, 148 [115 Cal.Rptr. 109], the trial court must carefully navigate procedurally between `the Scylla of delay and the Charybdis of ineffective and inadequate representation.'" (Townsend v. Superior Court, supra, 15 Cal.3d at p. 782, italics added.) It may fairly be predicted that following the effective date of today's pronouncement,
The majority further overlooks a fact of life in our criminal courts today. The pendency of trial plays a part in the recognized and judicially approved process of plea bargaining, which leads to the disposition of many criminal cases. If the probability of defendant's facing trial is decreased by use of the majority's dismissal procedure, defendants in substantial numbers may be less likely to enter plea negotiations preferring instead to wait for a possible outright dismissal. The cases which are not settled by plea bargain will result in additional trials, thus adding further to the congested calendars.
I must also emphasize that while the majority limits its holding to those instances in which the defendant is incarcerated pretrial, the practical implications of the majority's interpretation for the day-to-day processing of California's criminal cases are unpredictable and could well prove devastating. The 1979 Report of the Judicial Council to the Governor and the Legislature dramatically underscores the serious consequences of the majority's action. I quote from the report: "Commencing about 1970 the superior courts were able each year to reduce both the number and proportion of cases where the commencement of trial exceeded the 60-day limit. However, since 1974-75 the metropolitan courts have reported increases in the number and proportion of cases with juries sworn more than 60 days from filing. In 1977-78, 11 of the 20 courts reported overall increases in the percentage of cases with juries sworn more than 60 days from the filing of the indictment or information. Of the 4,268 criminal juries sworn in these courts last year, 2,639 or 61.8 percent were sworn more than 60 days from filing, ranging from lows of 21.8 percent in San Francisco to highs of 91.4 and 89.9 percent in the San Diego and Santa Clara courts, respectively." (Judicial Council of Cal., Annual Rep. (1979) pp. 85-86, italics added.) The question may legitimately be asked: What will be the effect of the majority's new interpretation upon a system in which more than 60 percent of jury cases statewide are now commenced beyond the 60-day period? The majority blithely ignores these realities. In fairness, it would be calumny to suggest that the courts in counties with large metropolitan courts are indifferent to the problems of delay or that the affected public defenders are sluggards. Yet I fear it is the
It is noteworthy that the terms of the recently amended Penal Code section 1048 impose additional statutory requirements regarding the scheduling of criminal cases. Under section 1048 courts are now directed, although not mandated, to commence within 30 days all criminal actions wherein a minor is detained as a material witness or is the victim, or wherein any person is the victim of a sexual offense committed by the use of force, violence, or the threat thereof. The demands of this section combined with the new obligations which the majority now impose judicially will surely make the scheduling of cases even more difficult and substantially increase the possibility of dismissal, at further risk to the public safety.
In the case before us there is no suggestion whatever that the court and all counsel did other than their best to provide defendant with adequate representation and a prompt hearing, given the available resources. Furthermore, and this is of crucial importance, the majority concedes that defendant was not prejudiced by the delay in his trial, which fact the majority relies upon for the very affirmance of his conviction.
We observed in Townsend, supra, 15 Cal.3d 774: "We are cognizant of the heavy caseloads resting upon the criminal trial courts of this state and upon the affected prosecutors' and public defenders' offices as well, and for the sheer necessity of the `trailing' practice here indulged. We have concluded that the trial court adopted the proper course in the matter before us. However, our holding herein is carefully circumscribed. We do not suggest that counsel possesses carte blanche under any and all conditions to postpone his client's trial indefinitely. Counsel's power in this regard is not unlimited. `[A] criminal defendant may not be deprived of a speedy trial because the prosecution — or the defense — is lazy or indifferent, or because the prosecution seeks to harass the defendant rather than bring him fairly to justice....' (People v. Floyd, supra, 1 Cal.3d 694, 707.) No such circumstances are herein presented." (15 Cal.3d at pp. 783-784.) I would reaffirm the foregoing cautionary limitations and regret the new majority's abrupt and unwise departure from our recent Townsend conclusion.
Unless a record clearly reflects circumstances of judicial or prosecutional indifference, or harassment or prejudice to the defendant, and it
The problem of overcrowded courtrooms is a major concern to all who are involved in the judicial process. However, any necessary fiscal solution does not lie within the traditional province of the appellate courts. Rather, it is for state and local governments to decide on the means of ameliorating the problem. We may, on a case-by-case basis and when appropriate, afford relief by dismissal to those individual defendants who have been denied their right to a speedy trial. We should not, however, by judicial improvisation, and in the absence of prejudice to a defendant, particularly in matters so closely affecting the public safety and welfare, impose our own theories of management on local court systems, thereby reaching arbitrary results which are neither constitutionally compelled nor in the public interest.
Clark, J., and Manuel, J., concurred.
I am compelled to write separately to voice strong disagreement with that portion of the majority opinion which relies on the case of People v. Wilson (1963) 60 Cal.2d 139 [32 Cal.Rptr. 44, 383 P.2d 452].
As Justice Peters pointed out in his dissent in People v. Wilson, supra, 60 Cal.2d at page 158, "the trial court, without defendant's consent and against his will, denied him, erroneously, his constitutional and statutory rights, because the trial court rode roughshod over these fundamental rights, because the trial court, illegally, forced him to a trial over which it had no jurisdiction, ... that in some unexplained and inexplicable manner the trial court regained `jurisdiction' to try him, and that this error, this fundamental invasion of an important constitutional and statutory right, became immaterial and must be disregarded. Thus, this invasion of fundamental rights, this error that was admittedly prejudicial when committed, becomes, in some magic way purged. The
The majority's error is compounded by its determination that appellant failed to prove prejudice under the Wilson test. Even if the holding in Wilson is adopted and applied to the facts of this case, I cannot understand how appellant can be held responsible for the failure of his lawyer to bring a pretrial writ when that same counsel refused to follow appellant's wishes that he receive a speedy trial. The majority overlook the fact that appellant's failure to bring a pretrial writ asserting his right to a speedy trial was part of his counsel's underlying failure to properly represent appellant's interest. Also, this court is requiring a person, who is not schooled in legal procedure, to be aware of the fact that he must file a pretrial writ, and his failure to do so will require him to prove prejudice on appeal. I cannot indorse such a rule or such an unfair result.
The petitions of both parties for a rehearing were denied April 24, 1980.
"MR. COHEN: I am presently engaged in People versus Mashell in trial in this department. I also have the case of People versus Phillip, which is number five on this calendar, and which is an older case than Johnson. I also have the Hughes matter set for the 28th which is a custody kidnapping-robbery case and also older than Mr. Johnson's case and some unfortunate bailout over a year old out of Department 122 and 123.
"Therefore the realistic earliest date I could be available for Mr. Johnson is May 6th. Mr. Johnson has informed me, being in custody, he will not waive any time.
"THE COURT: All right ... Mr. Johnson, do you waive your right to trial within the statutory period and personally consent to this matter set for trial on the date requested by your counsel, May 6th?
"DEFENDANT JOHNSON: No.
"THE COURT: Very well. There being good cause shown, the matter is continued to May 6th."
"MR. COHEN: For the following reason, I cannot announce ready this morning. The Perez matter which is on its 10th day is assigned for trial to Department 128. The court has thereafter ordered me to try the Stevens matter which is presently set for the 11th. I am hopeful I will be finished with the Perez matter then.
"With the trailing time necessary to handle Stevens, then the next matter I have is Mr. Anderson, which the court has also ordered me to try after Perez and then Stevens. That is set for the 27th. Therefore, we will probably be trailing on the Stevens matter, I would figure 10 days which would be to the 7th, approximately, of June, and that case will probably take four days to try which is to the 13th. I will be concluding that matter, and I have talked with [the deputy district attorney] and Mrs. Ornelas, your clerk, about putting the matter over to June 14 when it looks like I will be done with Perez, Stevens and Phillips....
"THE COURT: All right, Mr. Johnson, I must inquire for my record: Do you waive your right to trial within the statutory period and personally consent to this matter being set for trial on the date requested by counsel, June 14 which it appears to the court is the earliest opportunity counsel has to try your matter.
"THE DEFENDANT: No, I don't.
"THE COURT: There being good cause shown, the matter is continued to that day, June 14."
"THE COURT: The record will reflect that we are listing, with the acquiescence of the court coordinator, who has been advised in the premis[e]s, to wit, that Mr. Cohen has another matter, to wit, Phillip Moure, with the tenth day to be the 20th. [¶] Hopefully, this will speed up the process of an early disposition of some of your cases....
"MR. COHEN: I would expect — Your Honor, perhaps an adjustment. I would suggest maybe a comeback date of Thursday, the 23rd, which would be the nineteenth day.
"THE COURT: All right. Rather than have each of you gentlemen brought into court or to attend court every day until this matter is likely to go out — it probably wouldn't go out until the 23rd — so we'll excuse you all until that time."
Townsend v. Superior Court, supra, 15 Cal.3d 774, 781, suggests that the state constitutional right to a speedy trial is also a fundamental right. In view of our disposition of this appeal, however, we need not reconsider Townsend's holding that a defendant's rights under section 1382, a statute enacted to supplement and define the constitutional guarantee (see Sykes v. Superior Court (1973) 9 Cal.3d 83, 89 [106 Cal.Rptr. 786, 507 P.2d 90]; People v. Godlewski (1943) 22 Cal.2d 677, 682 [140 P.2d 381]) are not of fundamental character. Likewise we need not here resolve whether a defendant's rights under that section are "substantial" in character, such that counsel may not waive such rights contrary to the instructions of his client. (See Linsk v. Linsk (1969) 70 Cal.2d 272, 278 [74 Cal.Rptr. 544, 449 P.2d 760]; Townsend v. Superior Court, supra, 15 Cal.3d 774, 785 (Mosk, J., dis.): see generally Comment (1978) 13 U.S.F. L.Rev. 177.)
We note that Penal Code section 1048, as amended in 1979, gives priority in trial setting to cases in which the defendant is in custody.