*1 No. 31188. Oct. 1980.] [L.A. OWENS, Petitioner,
RICHARD COUNTY, THE COURT OF LOS ANGELES SUPERIOR Respondent; PEOPLE,
THE Real in Interest. Party
Counsel Littlefield,
Wilbur F. Defender, Fischer, Public Dennis A. Patrick G. and Rogan Defenders, John L. Ryan, Public for Deputy Petitioner. No appearance for Respondent.
John K. Van de Kamp, District Donald J. Attorney, Kaplan Maurice H. Oppenheim, District Deputy for Real Attorneys, Party Interest.
Opinion
BIRD, C. J.Can Penal Code section which that a requires per- son with a charged be felony trial within 60 court, filing charges superior interpreted so as to give state additional time by staying operation statute con- during any tinuances requested aby defendant?
I An 18, 1978, information filed on October with charged petitioner (Pen. Code, two 211) counts of robbery that he had alleged used § a firearm (Pen. in committing Code, one of those 12022.5.) offenses. § That same day, petitioner was arraigned, pleaded not and denied guilty, the allegation of firearm use. The defender’s public office was appoint- ed. 1980] him,
ed trial date represent pretrial setting conference and were scheduled 1978. for November for petitioner’s request.
On that trial was set day, January the informa- than after the Because this date was more However, tion,1 on January waived time. petitioner personally and he suggested counsel was in another petitioner’s engaged objection for 11. Over the specific case be reset petitioner’s January in question, who custody throughout remained petitioner, was occu- his trial to 8. Defense counsel January court continued case so January petitioner’s with another on pied yet 11, at January 9 and to the again morning continued January trial. ready which time answered petitioner’s attorney However, wit- that it had not located its yet indicated prosecution nesses, the two recessed the victims of robberies. The court alleged session, matter until the afternoon where it learned that the prosecution would be to “ascertain readiness” The January unable their until thereupon trailed the case that date. still had not contacted its witnesses by January *5 the petitioner’s and the court trail matter. Over again the trailed January court ordered the matter to which objection, the both the court the as final to commence attorneys regarded day and within trial the limits set section 1382.2 court, good pertinent part. provides; 1In Penal Code “The unless cause section shown, following contrary to the is the must order the action to be dismissed in cases: superior days within brought “2. When a is not to trial in a court or, finding or the is to filing after the of the indictment of the information in case cause mistrial, again following granting an new which an appeal be tried a order a trial from taken, court, days is not or from the within after such mistrial appeal superior an declared, trial, the entry granting has been of the order the new or after after court, which in the remittitur in or issuance of a writ or order effect the trial after the grants days the writ is filed in the trial a new within 60 after notice of or order notice the upon prosecuting attorney, days court and served or within 90 after attorney upon prosecuting writ or order filed in the trial and served attorney preliminary for a exami- case where district chooses to resubmit case reversing upon judgment an issuance a of conviction appeal nation after or the of a writ court; plea guilty prior hearing justice except a or preliminary municipal a to a for trial on a date that an action dismissed under this subdivision if it is set shall not be consent, express request defendant or his or at the with implied, neglect appear or or and if defendant is to because of his failure to trial on the date so set for trial within 10 thereafter.” statutory unless indicated. All references are to the Penal Code otherwise setting for a date than 60 after the 2Petitioner had to his trial more consented appeared court and counsel assume Accordingly, information had filed. been On January prosecution indicated that it still had not located witnesses, petitioner pursuant and moved to dismiss to section 1382. response, In on evidence an put attempt establish cause to continue the trial good past the statutorily prescribed period. The court petitioner’s denied motion to and dismiss found cause to grant prosecution’s continue the case request until the following (See 250-253.) day. post, pp.
On were January prosecution’s witnesses in the court- room. renewed his motion to Petitioner dismiss under section and the court denied it. Petitioner then filed a again petition for writ of which Court of Appeal denied. His summarily prohibition/mandate, application for in this court was hearing the case retrans- granted ferred to the with Appeal Court directions issue an alternative writ and with citations section 1382 Rodriguez with one Appeal, jus- 182]. tice denied the writ Petitioner dissenting, petition. for a reapplied here, and this court hearing again granted request.
II This court must first determine whether an delays requested by accused are to be deducted from the when 60-day statutory period claim raised under section subdivision 2. The issue is one of posed interpretation, court’s first recourse is statutory to the statute properly language (Fay itself. District Court of 200 Cal. Appeal 896].) P. *6 face,
On its subdivision 2 section of 1382 makes no mention of sus- pending of the It running 60-day period. that an accused is provides entitled to be to trial “within 60 after brought days finding ” indictment or . . of the information . This lan- filing . unqualified seems guage a trial within 60 require consecutive calendar days days bring that the prosecution petitioner was entitled to an additional 10 in which to 1382, 2, “grace by 10-day period” trial. Such a authorized section subdivision provides which part in relevant that “... an action shall not be dismissed under this beyond 60-day period request subdivision if it is set for trial on a date at the consent, neglect of his or failure express implied, defendant or with his or because appear so or within and if the defendant is trial on the date set for trial days thereafter.” case, following day January In the when defense counsel an- 10th January would be ready Sunday, nounced was a so the for Monday, January (People Taylor extended until Proc., Cal.Rptr. 762]; 12a.) Civ. 534-535 Code § with the method of com- of an information. This is consistent (See in this state. Code Civ. employed time which is puting ordinarly Proc., intended that the 60 were to 12.)3 Had the Legislature § accused, it those delay consist only such an adjustment. have made for explicit provision would surely substantiates the import The of section 1382 legislative history in- requirement statute’s and makes clear that the “60-day” language, Prior to the statutory right volves 60 consecutive calendar days. ex- with the 60-day requirement to dismissal for noncompliance defendant, whose trial has not been postponed upon tended to “a only ”4 a peri- There was no provision 10-day “grace . . . . application who obtained od,” as to whether an accused and the statute was unclear limit lost 60-day thereby of his trial to a date past a postponement Moreover, a dismissal. to a trial and speedy forever his statutory rights were affect- rights indicate whether these statutory section 1382 did not the 60- to a date within for a request postponement ed an accused’s day period. in the led to confusion in the case
These
statute
law. For
ambiguities
vided law last, it is also excluded.” then holiday, day is unless the last court, unless provided: “The section 1382 it was amended 4Before following shown, to be dismissed order the action .the contrary is must cause to the *7 cases: defendant, is not upon application, his postponed been trial has not whose “2. If a indictment, finding of the the days after court within brought superior to trial in a information, following appeal an from be had new trial is to or in case a filing of the or in the trial court." remittitur the days within 60 after superior court 1674, 140, 3856.) (Stats. p. ch. § the effect in the cases regarding There was even confusion greater As the Judicial within the 60-day period. to a date a postponement defendant waives observed, whether the “It is not clear Council (1897), 116 Cal. (see Buckley claim under the section People right is suspend- .), statutory period . whether the running or (1912), (see v. Peter caused delay ed during the trial to .) delay causing or whether only 152. . Cal.App. (Judicial Council of has effect.” the statutory period be set beyond 43.) Cal., fn. 17th Biennial Rep., supra, mandate,5 urged the Judicial Council
Pursuant to its constitutional 1382. It “recom- in section these clarify ambiguities Legislature all cases for dismissal of be amended to provide mended that the section (unless cause period to trial within the statutory the trial set being consented to shown) when the defendant has except the case in the latter situation and statutory period, beyond after to trial within must be dismissed if it is not brought This will clarify which the defendant consented. last date for trial to (a) may under Section rule that dismissal present establishing consented to a the defendant has previously be had even though time for (b) as a reasonable statutory period, fixing defendant, and to by trial after consented expiration a defendant (c) attributable to eliminating possibility delays dismissal.” may prevent which are within the statutory period wholly (Id., 32.) at p. recommendations, an proposed the Judicial Council its implement
To Bill was enacted as Senate section which proposal amendment verbatim the adopted The text of the eventual amendment No. 614. as relevant to Council. Insofar the Judicial proposed by language case, 1959-amend- added to subdivision present language intact today. ment remains VI, pertinent provided, section la of the California Constitution 5In article
part: time: “The shall from time to Judicial Council regular of each “(4) Legislature at the commencement Report to Governor proper. may it deem with such recommendations as session in- the several courts not “(5) procedure practice rules of Adopt or amend force; the council may be in or that hereafter with laws that are now consistent shall submit to the thereof, its recommendations regular session Legislature, at each of, in, relating practice and changes existing laws to amendments with reference procedure.” VI, Const., (See art. Cal. § *8 246 that are statutes proposed of which
“Reports
commissions
weight
construing
are entitled to substantial
adopted
subsequently
where the statute pro
This is
true
particularly
the statutes. [Citations.]
without
the
adopted
Legislature
commission is
posed
by
the
brief, be
the
comment
whatsoever and where
commission’s
change
that
reason
believe
ordinarily strong
in such a situation there is
cause
the explanation
measure upon
the
votes were based
legislators’
large
(Van Arsdale v. Hollinger
commission
the bill.”
proposing
20,
Thus,
245,
(1968)
Cal.Rptr.
508].)
437 P.2d
68 Cal.2d
249-250 [66
little
of its recommendation can leave
the Judicial Council’s explanation
the 1959 amendment
to “estab
doubt that
also intended
Legislature
be
even
though
lish
1382
had
may
dismissal under Section
[]
to a
delay beyond
statutory
defendant has
consented
previously
attributable
delays
and to
the possibility
period”
“eliminate]
period may pre
within
statutory
defendant which are wholly
(Judicial
Cal., 17th Biennial Rep., supra,
vent dismissal.”
Council of
with a rule that
32.)6
incompatible
delays
desired effects are
These
statutory
toll the
running
period.
the accused
nor the legislative
The district
discusses neither
attorney
language
1382,
Instead,
upon
he relies
solely
of section
subdivision 2.
history
Appeal
of a line
cases decided
the Courts
authority
from the
in which
defendants were deducted
requested by
1960’s
delays
were raised under sec
when
claims
statutory period
speedy
1382,
which
the statute
tion
there were other cases
assumed
although
said,
less.7
v.
60
more no
(People
meant what it
60
days—no
(1960)
758,
v.
345]; People
182
759
Cal.App.2d
Harrison
754,
(1961)
Cal.Rptr. 102];
Cal.App.2d
Burch
196
761-762 [17
and Peo
669];
320
v.
262 Cal.App.2d
Flores
Cal.Rptr. 251].)
Conway
Cal.App.2d
v.
ple
cases,
Harrison,
forth the
other
argument
first of these
set
in their
authority
computations
to its
three cases
deferred
merely
Bar’s Committee on
legislation prepared for the State
code
6A review
selected
effect of the 1959
similarly
purpose
Continuing
Bar
described
Education
defendant,
was attributable
“Previously,
postponement of a trial
if
amendment:
Court,
(see
Stewart
right
trial was clouded
to a
(1897)).
247 Harrison, turn, earlier 60-day period. relied on two cases of Peo Peter, 151, 152 P. ple Cal.App. 415], 20 supra, People [128 94, (1953) Martinelli 118 96-97 P.2d Cal.App.2d [257 37]. did not interpretation the Harrison for these
Obviously, precedents 1382, subdivision to section 1959 amendment take into account the which proposed fact, Report Council In the 1959 Judicial to the confusion very contributing v. Peter as referred to People statute ante, (See at p. sought remedy. Council which Judicial construe or consider did not in Harrison Appeal Even the Court of 1382, the case was de- the fact that despite 1959 amendment to section came into effect.8 after the amendment cided the Harrison acceptance caution against considerations also
Policy in our criminal trials. encourages gamesmanship since it interpretation wanted to increase the peri- or the court For if the example, prosecutor date be ask that a trial would they od 60 for to trial either to risk going that the accused is forced set so very early 1382 requesting of section or to waive the protections unprepared defense addition, may encourage In such gamesmanship postponement. a later trial If defense counsel think that in kind. respond counsel to well, as of the court or date is in the interest actually ac- rights by feigning their clients’ protect feel constrained they may of requesting in the onus hopes shifting date ceptance early procedural This manipulation to other shoulders. delay type in our legal system. should be avoided advantage rules for adversarial and brinks- this sort of dissembling rule which would encourage And a this court. should not be manship promulgated amendment, subsequent 8In cases decided to the 1959 this court has calculated the 2, 60-day period deducting of section delays requested subdivision without by the accused, though (See even the issue expressly was not People considered. v. Wilson (1963) 60 Cal.2d Cal.Rptr. [“Here, 145 383 P.2d defendant waived [32 452] original 60-day the the matically brought period and waived time for a considerable thereafter. But day any last to which way August consented was 1960. This auto operation into 10-day provision of section 1382 of the Penal Code.”]; Townsend v. 15 Cal.3d 783 [126 [“By object, 543 P.2d requests including counsel’s failure to in some instances 619] affirmative delay, petitioner effectively has consented every postponement up to and When, counsel, through objected November 18. day he on that further continuance, (Citation 10-day period the critical omitted.)].) commenced.” published In their opinions various Appeal similarly Courts of computed the include; excluding defense-requested without postponements. These cases People v. Marsh Cal.App.2d Cal.Rptr. 49]; Cal.Rptr. 814]; 365 People v. Andrews [75 (1970) 14 Cal.App.3d Grey (1972) People v. Cal.App.3d Cal.Rptr. 245]; v. Wilson 619]. statute, Further, end- unfortunate interpretation given if this whether a given when to decide attempting less would result wrangling ” will be as The courts “defense-requested. is to be characterized *10 the disputes a of rules in to resolve plethora forced to fashion order a to the Should following questions. which are certain arise. Consider where, of set- at the time trial be deducted as delay “defense-requested” a trial date to accommodate defense counsel suggests particular ting, alter- What if defense counsel an anticipated his schedule? any its Does it make setting? of a date subsequent ation trial re- or in the accused’s joined difference that the prosecution acquiesced the the postponement Do motions which quest? pretrial may require absence, illness, the or affect the rule? Does a “caused” accused, the or the defense coun- courtroom commitment of conflicting where are sel, delays What do do you defense witnesses count? a his These are but one accused but not codefendants? requested by deductability must if a rule of few of the which be addressed questions is not will clarity reign.9 read into section 1382. Confusion
It should in the Legislature enacting not overlooked rule time the prosecution a considerable 60-day provided period run its case. The does not even commence to prepare 60-day period until have filed in In the charges typical been court. formally superior are filed until the ac- prosecution, in court felony charges superior preliminary has in cused been arraigned municipal result, As in has more examination held. the prosecution reality many than 60 in which to the case for trial. days prepare an preliminary
Once accused has been held to answer at a examina- court, in the additional tion is an municipal prosecution provided Also, 1.) to file subd. if the ac- (§ which an information. to, or the 60 requests, cused consents causes trial to be set beyond information, the prosecution is afforded days following filing 2.) (§ the additional described subd. 10-day “grace period” above. agreed position majority present 9The author in the of the dissent with the when, deducting 60-day period he without computed case defense- Court, at requested delays supra, 774. His in Townsend v. Cal.3d distinguish ignores case Section tempt computations in that obvious. when grace play only clearly provides 10-day period subdivision that the comes into after the prosecution already bring an accused to trial within 60 has failed Thus, charges that the superior in Townsend court. conclusion (id., grace 783) that the period begun necessarily required a determination had run, though part defense-requested 60-day period had of that consisted even postponements. If the exceeded for reasons unattributable to the ac- cused, the prosecution can dismissal prevent showing (§ 1382.) cause. When the has action been dismissed for want of pros- ecution, prosecution free initiate a second prosecution for the 1387), (§ same offense which all felony starts clocks statutory running anew. Even if felony been twice dismissed charges under section 1382, the can refile another time if it yet can show substan- tial new evidence which due diligence would not have uncovered at or prior (§ to the dismissal. Clearly, prosecution’s interests are under amply protected present statutory scheme without rewriting *11 the statute. that
Having welfare of recognized people State “[t]he California that all shall requires proceedings criminal cases be set for trial and heard 1050), and determined the earliest time” possible (§ 1382 enacted section to con Legislature implement an accused’s (Jones (1970) stitutional trial. v. right to Court 3 734, 578, Cal.3d 738 478 P.2d This Cal.Rptr. 10].) fundamental [91 should right not be weakened nor gamesmanship encouraged by adoption the Harrison interpretation. This court should respect 1382, 2, intent legislative behind section subdivision as revealed clearly section, in the that language legislative history Accord this court ingly, holds that the period Penal Code 60-day designated 1382, section subdivision refers the 60 calendar days following accusatory pleading.10 case, Under facts of this there can be no doubt state failed to The bring petitioner prescribed to trial within the time limits. 18, 1978, information was on so that filed October the 60-day period 11 on expired December 18. Since waived time and petitioner 4, 1979—i.e., trial date of January 60-day period—the (See provision for a becomes relevant. statutory “grace period” 10-day they as holding, upon 10Insofar are inconsistent with this cases relied the dis Harrison, 758; Burch, supra, trict v. attorney—People Cal.App.2d People 182 v. 754; Flores, 313; supra, Cal.App.2d People 196 supra, Cal.App.2d v. 262 Conway, supra, Cal.App.2d v. disapproved. referring 271 15—are Other cases to the Dulsky Municipal (1966) Harrison rule in dicta v. Cal.App.2d include: Court 242 18, 22, Cal.Rptr. 381]; People Cal.App.2d v. Addison footnote [51 Cal.Rptr. 626]; Municipal and Hankla v. Court 26 present holding Insofar as these cases with our they conflict too 896]. are disapproved. However, following day actually 11The60th October 18 was December 17. De since Sunday, cember 17 was a 60-day provision the final date commence within the ante, 2.) (See would have been December 18. fn. ante, noted, provision requires this an accused previously fn. As to a trial date outside the must be 60-day who has consented 10 calendar latest trial date to which to trial within he consented. to which could be deemed to have con-
The
trial date
petitioner
latest
11, 1979,
when his counsel announced he was ready
sented
January
Thus,
last
22 was the “tenth” and
authorized
January
day
for trial.12
ante,
(See
2.) However, the
fn.
prosecution
statute
commence trial.
there was no trial
January
Clearly,
was not
until
23.
ready
proceed
periods provided
within either the
section
10-day
Ill
The sole
is whether
established
issue
remaining
good
If
cause for the
trial.
cause
bringing petitioner
existed,
prosecution. (People
burden of
it fell
showing
upon
Clark
(1965) 62 Cal.2d
When, case, cause is on the good as in the a claim of based wit- prosecution need for additional time to secure the attendance nesses, is Even in particularized those situations showing required. stake, is to where an accused’s to a trial not order right speedy “[i]n invoke the of the trial court to a continuance to obtain grant discretion burdep witness, the the the moving showing has presence party January January from postponed trial had been 4 to because of 12Petitioner's elsewhere, objected attorney’s obligations though petitioner even himself had to trial In Court, holding this v. delay. apparent the reliance on court’s in Townsend 774, attorney supra, the and counsel below assumed that a defense 15 Cal.3d objections. rights speedy express client’s In could waive his client’s to a trial over the 557, (1980) 26 Cal.3d 566-569 recent case Johnson 431, however, holding 738], its earlier and determined that 606 P.2d this court clarified attorney speedy rights one of his clients in may an not so waive the trial appointed Although, on the facts of this favor the trial interests of another client. order to case, objection January any appear sufficient to petitioner’s on 4 to further would parties and the 10-day grace period of section subdivision activate January expire did 22. statutory period court assumed that the not until might unnecessary It to have commenced on is determine whether 4, since, prosecution did opinion, discussed elsewhere in this January reasons failing bring 10-day peri- the case to trial within the not demonstrate cause for commencing January od that (1) legal criteria have been satisfied: That following movant has due exercised an to secure the atten- diligence attempt means; dance of the at the (2) witness that the by legal expected material; cumulative; (3) (4) that it not it testimony merely that time; can be obtained within a reasonable that facts which the will witness cannot otherwise be testify proven.” (People Wilson 267], citations Cf. omitted. Ford v. Superior Court 10-11 Cal.App.
P. 96].)
In the present prosecution case the failed due to demonstrate diligence attempting procure attendance of its witnesses. The testimony prosecution revealed investigator that witnesses were within the jurisdiction, had shown no ei they signs being ther elusive or uncooperative, had not moved from they residences had they occupied at time of the examina preliminary tion, and that the was at all prosecution times aware of the witnesses’ addresses telephone numbers.13 it
Although had two months nearly since the first trial date was set to so, do did begin to undertake active efforts make with personal contact its witnesses until when re- January it quested the court to over put the case to enable it “send somebody else out to look.” The testified that after he investigator January made a few “probably phone calls” to both witnesses without reaching either, and on one January made to the residence of trip one of *13 in witnesses an unsuccessful effort to There at- contact him. was no visit tempt to the residence other witness. One had witness in to telephoned response investigator’s messages shortly before January and to come to court the hearing agreed following morning. The investigator never with the spoke other witness.
The prosecution’s also that investigator testified had been subpoenas mailed to the practice witnesses accordance with of the regular Los District office. He said that Angeles Attorney’s subpoe- ordinarily nas couple are mailed to witnesses a of weeks before the trial The date. are with a the witnesses con- subpoenas stamped message, requesting to course, prosecution 13Of in the can its unusual circumstance which show that inability produce subpoenaed request a witness was the direct result of continuances accused, ed delays prosecution an would relevant whether not the those be as to or diligence.” present exercised “due This is case before court. not this be on call.14 thereby placed so that might district attorney they
tact the in the of the witnesses not know whether either The did investigator that thought the mailed and subpoenas case had present responded unknown.’” returned ‘addressee subpoena “probably witness” was one in actually The had 10-day grace period trial court noted weekends, it as had thus what characterized provided cluded two the witnesses.” The get out “really good opportunity go a very sufficiency pros some about the expressed skepticism court also manpower I know if it’s “I will don’t say candidly ecution’s exertions: what, been made to these witnesses.” get effort could have but more
Nonetheless, motion to dis petitioner’s the court denied made effort” and because “at least some People miss because “not that onerous on the defendant.”15 requested delay v. Rodri The case is similar to the case of factually a trial date was selected 481. In Cal.App.3d Rodriguez, guez, supra, to continue prosecution subsequently sought in advance. The one month presence to secure the in order beyond the trial had one day endeavoring a that its investigator spent on showing victim trial court the witness. The subpoena locate unsuccessfully denied the accused’s motion to dismiss. the continuance and granted to be “The found these erroneous: rulings only Court of Appeal was the of witnesses for shown for the delay unavailability ‘cause’ had one spent only day investigator, during 30-day period, whom an adopted to avoid incon procedure this had been investigator explained that 14The expense county personal and to save the veniencing prosecution’s witnesses county’s schedules and the concerns for witnesses’ attorney’s The district service. cause to do rise to level of may be but not funds otherwise commendable may postponed 1382. An under section accused’s avoid dismissal witnesses. merely the convenience statutory period to accommodate 315]; Cal.App.3d (Pickett Municipal Court 155-156 Municipal Cunningham has subpoena see served efforts to 18].) reasonable And failure undertake (People diligence. v. Collins *14 a of due regarded indicative of lack been as therein.) 97], cited cases 333 P. Cal. [233 statutory right to a a violation of his pretrial relief for an accused seeks 15When (People delay. prejudiced by the obliged that has been not to show he he is shown, Wilson, delay is 151.) good for the p. If no cause supra, 60 Cal.2d at v. the ac regardless of how burdensome charges, of its assessment court must dismiss Cal.App.2d 66 950 (See Fegelman v. delay. People might found the cused have dismissal].) requires statutory period one-day delay beyond P.2d 436] [unexcused conviction, showing a of actual However, judgment held that after this court has Wilson, 152.) p. at Cal.2d (People supra, v. 60 prejudice required.
253 We cannot that cause’ was shown for the To looking. agree ‘good delay. do so would be to to seek and fail encourage delays their positive prosecute posi obligation deligently failing [szc] (Id., out witnesses.” at tively promptly p. seek essential fn. omitted.)
These same this concerns to conclude that compel prosecution’s to locate its witnesses within meager attempts the statu did not tory period establish cause to the trial and avoid good Court, (See Pickett v. dismissal. Municipal supra, at Cal.App.3d 1162; p. Municipal v. Caputo 952; Fegelman, supra, Cal.Rptr. 435]; v. People Cal.App.2d at p. Buckley, 153.) 116 Cal. at When supra, p. faced with the
prospect dismissal, of an imminent the prosecution’s belated efforts to produce their witnesses almost immediate yielded results. This fact is a strong indication that earlier efforts the same lines along would yielded results.
The trial court its when, abused discretion its it despite misgivings, found cause to good continue the trial and the motion to dismiss. deny Ford {Matter 160 Cal. 348-349 Cal.Rptr. 757]; Court, Harris Municipal 65.) supra, 209 Cal. at p. this Accordingly, court16 directs writ peremptory of mandate issue su- ordering perior court to do what it was bound to do in the of a clearly absence Ford, su- showing cause—dismiss the information. {Matter of pra, Cal. J.,
Tobriner, Mosk, Manuel, J., J., J., Newman, concurred. RICHARDSON, J. dissent. I respectfully
Penal Code section 1382 requires person charged with a felony be to trial brought within charges the superi However, or court. the section also contains this proviso: action “[A]n shall not dismissed under this is set subdivision if it for trial on a date at the request or with defendant consent, express dr implied, or because of his or neglect failure appear and if the to trial on date tri so set for al (Italics added.) within days thereafter.” agreed 16The author the dissent with position majority in the present when, computed he the 60-day period deducting
case without the defense- Court, requested delays in supra, Townsend v. page 15 Cal.3d at *15 254 decision, 1382 California in section interpreting
Before majority’s which was period requested held that courts had uniformly in determin must be deducted from the 60-day defendant by and reasonable. wholly logical with the statute. This is ing compliance con with the On should the defendant not principle, why charged him and which serve requested by tinuances or extensions Thus, (1960) 182 in v. Harrison purposes? convenience and People 1382 to a the court section Cal.Rptr. 345], applied 758 Cal.App.2d [6 and between the of the information elapsed filing case wherein 69 days of trial. The court sustained position urged the commencement conviction, con Attorney the then General and affirmed defendant’s “16 69 were days requested by total of cluding therefrom, 53 be deducted a balance of leaving defendant must (P. 759.) time well within the ...” The Harrison 60-day a limit. days, in cited with an earlier of Justice Peters approval opinion People (1953) 118 96 P.2d Cal.App.2d v. Martinelli [257 37]. same at the General’s following year, again Attorney urging, the v. 196 Cal.App.2d were confirmed in Burch
principles People 754, 761-762 Cal.Rptr. 102]. [17 Hufstedler, in Flores writing People
Seven later Justice years (1968.) 112-day faced with Cal.App.2d 669], of trial between the and date noted charges lapse “[T]here . . a continu- from those attributable to days. must be deducted defendant, motion, with the consent of the ance defense counsel’s upon well within the limit.” a balance of time leaving days, (P. 320.) a unani- speaking in 1969 Donald Wright again Justice
Finally, Conway mous court filing of 65-day lapse confronted between 251], 14-day delay deducted a
information and the 60-day to trial within that defendant determining section 1382. period required by
Harrison, Burch, direction of Flores, the clear Conway pointed uncertainty. Significantly, no ambiguity law. There was California Harrison, Conway. Burch hearing denied a unanimously we Three more voice in four cases. dissenting a single There was not dissenter, Harrison: cases, relied on without a again appellate Cal. 26 Cal.App.3d Hankla v. Municipal
255 18, 22, Rptr. 256 896]; People Addison footnote Cal.Rptr. 626]; and 242 Cal. Dulsky Municipal Court App.2d The thus one stroke majority 381]. unanimous, reasoned, disapproves reverses seven consis carefully tent opinions decided within the appellate past twenty years.
The reason for its given judicial U-turn majority abrupt law, is California the sudden that apparently, discovery appellate overlooked, each justices in 7 cases have either these forgotten, “did not take into the 10-day account” limitation of section provision deference, due 1382. With I that in this suggest estab unsettling firmly rule, lished is The is majority transparently wrong. majority’s view that, because the section’s legislative history, even the defen though dant has contributed which extends delay 60-day case period, the must be tried within ceases delay after without from the time deducting 60-day period any period attributed answered, The defendant. majority’s argument fully cogently however, by Justice Files in his for the Court Presiding opinion Ap peal First, in this case: are “There two answers to this contention: [¶] Harrison, Burch, all 4 Flores, of the cases [i.e., cited above and Con way] which held that the defendant’s is not counted in the 60-day period, were decided after 1959 amendment adding § [to effective, 10-day provision] became and none so the statute. interpreted [IT] Second, the 1959 amendment affect purport does the manner in which the counted. added in 10-day provision, 1959, is exception an to the otherwise applicable 60-day limitation. It is an exception which after the applies expiration of the allowed (Fn. omitted.) by the preceding clause.”
In similar fashion fails find wholly in its majority attempt some between the established line of authorities inconsistency hereto- fore described Townsend v. Cal.3d 774 P.2d our In Townsend attention was 619]. focused on wholly period contemplated section 10-day grace 1382, subdivision 2. This our discussion on readily appears throughout stated, “When, counsel, pages 782-783 of the As we he opinion. through continuance, that objected on further the critical day pe- (Italics added, Townsend, riod In we commenced.” rejected claim, others) defendant’s trial on the basis (among set properly within 10-day grace following defendant’s to further continuances. on objection Having rejected defendant’s claim we had occasion ground, no whatever to further explore ques- *17 have been tolled might during initial 60-day period tion whether the was not before us delay. point simply of defendant’s own period issue was itself “The acknowledges, As the majority opinion Townsend. (Ante, considered,” in fn. that case. not expressly Moreover, that the premise ap- I accept majority’s am unable who, over a of appellate justices period different proximately of section problem adoption examined this following years, A amendment. were insensitive to ignored subdivision hint that such was the fair of these no whatever reading opinions gives I Nor, do fore- standpoint to the from policy case. contrary majority, “gamesmanship” by permitting the reduction any potential see of the 60-day to consume perhaps greater part thus forcing regardless with his own continuances circumstances, statutory period within the unexpired portion of dismissal of criminal upon pain charges. Tobriner,
I the author share Justice fully reasoning Burch, identical argu- who in another defendant’s properly rejecting ment, to which . .that a delay concluded that it would “anomalous. contributed,. right he . .defeated his constitutional statutory correct, consis- (P. 762.) and when logical trial.” This analysis common sense with fairness and tency coupled reciprocal principles established. we should not unsettle a sound rule so firmly defen- I that the extended Because would hold continuances, I would not reach the question dant’s own for requests bringing whether existed own People’s cause case to trial.
I would writ. deny peremptory
Clark, J., concurred.