THE PEOPLE, Plaintiff and Respondent, v. JEROME KENNEDY KIRKPATRICK, Defendant and Appellant.
Crim. No. 16143
In Bank.
July 11, 1972.
7 Cal.3d 480
Carson Taylor, under appointment by the Supreme Court, David B. Epstein under appointment by the Court of Appeal, Andersson, Litt, Lund & Tockman and Andersson, Epstein, Litt, Lund & Tockman for Defendant and Appellant.
Evelle J. Younger, Attorney General, Nelson P. Kempsky, John H. Darlington and Daniel W. McGovern, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McCOMB, J.—The only issues raised on this appeal are (one) whether the conviction must be reversed because the pleas of guilty to a charge of burglary in the second degree (
We conclude that the guilty pleas are invalid because the record does not affirmatively show that defendant was informed of two of the three constitutional rights he surrendered by virtue of his plea and it does not show that he waived any of these rights. We find no denial of defendant‘s right to a speedy trial.
In action No. A-543205 Jerome Kennedy Kirkpatrick was charged with burglary of a motel on January 7, 1969. In action No. A-581416 defendant was charged with a burglary on August 25, 1968, and with assault with a deadly weapon on that date (
Entry of Guilty Pleas
After continuances in each action, they were transferred for trial on June 6, 1969, to Department 74. The court first announced that it understood that there was a desire to make a disposition of these cases in court. The People stated that first there was a motion to amend information No. A-581416 to add a third count charging the crime of receiving stolen property (
Before accepting these pleas, a voir dire hearing was held to ascertain whether Kirkpatrick was entering such pleas freely, voluntarily, and with a full understanding of the consequences of the waiver of a trial. Review of the record fails to reveal an affirmative showing that Kirkpatrick was advised of his constitutional right to confrontation of witnesses and to his privilege against compulsory self-incrimination or that he waived these rights.
A general showing was made from which it could be inferred that Kirkpatrick was aware of these rights, that he was willing to waive them, and that he intended to waive them at the time he pleaded guilty on June 6, 1969. He stated on voir dire before making his pleas that he was aware of his “constitutional rights“; that he knew that he was entitled to a court trial or to a jury trial and that he waived trial; that he was voluntarily pleading guilty because he was in fact guilty; that he had been informed that charges in a pending third action would be dismissed; and that he had been informed that he would be sentenced in these two actions only on what he was pleading to. Obviously there was a plea bargain.1 This general showing is not sufficient compliance with the “affirmative record” requirements of Tahl-Boykin. These requirements apply even when a showing is made, or as here inferred, that a guilty plea was entered pursuant to a bargain. (In re Sutherland, supra, 6 Cal.3d 666, 669-671.)
The only reason stated by him for not signing was that he could not, under penalty of perjury aver, as required by item 11, that deputies of the public defender‘s office were able to intelligently and competently handle criminal cases. He did fill out many of the other items. An inference could be drawn that he read and at least as of that time he understood all of its provisions. Considered in context with his many petitions and his intelligent and wary responses and questions in court it could be concluded that he knew in waiving his right to a trial he was waiving not only his right to be tried by a jury but to be free from personally testifying at the trial and incriminating himself and to give up the right to cross-examine the witnesses who might appear against him; also that his decision to voluntarily enter a plea of guilty might have been influenced by his knowledge of the evidence presented against him at the preliminary and the fact that he was not able to obtain witnesses to establish his own defense.
Boykin v. Alabama, supra, 395 U.S. 238, “necessitates a more precise showing on all phases of a guilty plea than mere inferences however plausibly drawn from circumstances on the record” (In re Tahl, supra, 1 Cal.3d at pp. 131-132), and Tahl “makes it clear that its requirements are applicable to guilty pleas accepted after Boykin” (People v. Rizer, supra, 5 Cal.3d 35, 43). These pleas were entered four days after Boykin was filed. The record does not make the affirmative showing required by Boykin-Tahl.
Right to a Speedy Trial
The record shows that jury trials were set, on Kirkpatrick‘s motion in each action, for April 14, 1969, although the cases were then pending in departments of the superior court located in different areas of the
No. A-581416 was called for trial on April 14, but the trial date was vacated because Kirkpatrick was not present in court on that date. On April 21 defense counsel advised that the defense was ready for trial, with the exception of pretrial motions. The matter was trailed until the following day. The pretrial motions were heard on April 22d. The trial continued to trail to the 23d, 24th, 25th, 28th, and 29th. On the 28th the district attorney requested that A-543205, then set for trial in a Pasadena department of the court for May 1, be transferred to this court for the purpose of making a motion on the 29th for consolidation for trial only. The time during which the case was kept on the trailing calendar was within the statutory time provisions of
On April 29 the matter was continued on motion of defense counsel to May 22, minute order for that date reads: “Cause is called for trial. On motion of the defendant, to obtain material witnesses, cause is continued to May 22, 1969 at 9:00 a.m. in Department 113. Defendant personally does not waive time. Remanded.” On May 22 the matter was called for trial and was trailed to the 23d. On the 23d the motion for consolidation for trial only was argued and granted. The minute order recites that on that date “Motion of the defendant to continue is denied.” The matter trailed to May 26; on that date it was trailed to the 27th (minute order reciting that this was done “due to congestion of calendar“), and on the 27th it was continued to the 28th (minute order reciting that this was done on motion of defendant “time needed for further investigation“).
On May 28 a courtroom was available and the case was called for trial. The prosecution was ready with about 14 witnesses. Deputy Public Defender Horne advised that in his opinion the defense was not ready for trial. However, he moved to dismiss both cases for lack of a speedy trial! On denial of this motion he moved for a continuance for the purpose of seeking out and interviewing witnesses. The People objected, stating that they were ready to proceed and that their witnesses were greatly inconvenienced “by having to wait on the defendant‘s pleasure as to when he
The record thus shows that the continuances beyond the 60-day statutory period were either at the request of defendant and/or his counsel or were within the extra time allowed by
Lack of an adequate defense or inability to locate witnesses by the defense is not grounds for such dismissal. This court‘s language in People v. Clark (1965) 62 Cal.2d 870, 886 [44 Cal.Rptr. 784, 402 P.2d 856], wherein we stated “. . . we are unable to understand why [defendant‘s] counsel would require more time to prepare than is provided, by statute, for the maximum lapse between indictment and trial” is not to be taken as holding that every accused person is entitled to a dismissal if his counsel, however diligent, is unable to find witnesses necessary for his defense. The court has discretion to allow reasonable continuances to the defense for the purpose of finding such witnesses or other necessary evidence.
The attorney has the exclusive right to appear for the accused and control the proceedings (People v. Merkouris (1956) 46 Cal.2d 540, 554 [297 P.2d 999]) and it cannot be said that the continuances requested by defense counsel herein were not reasonable. At no time was defendant ready for trial. No showing has been made that the defense was thwarted by state action in the preparation of his defense. No showing has been made of prejudice suffered by defendant from the continuances granted. Such showing is required (People v. Wilson (1963) 60 Cal.2d 139 [32 Cal.Rptr. 44, 383 P.2d 452], “Remedies for Enforcing the Right to a Speedy Trial” pp. 148-150) where defendant fails to apply to an appellate court for a prerogative writ prior to trial. The burden is thus upon Kirkpatrick to show that the error complained of was prejudicial and resulted in a miscarriage of justice (
Record on Appeal
Kirkpatrick alleges that the record on appeal is incomplete and incorrect, particularly alleging that although there is a clerk‘s transcript for April 29,
This issue was raised after conviction in the trial court and in the appellate courts, and further review is now foreclosed.3
No grounds for reversal are shown on the basis of the claimed denial of a right to a speedy trial.
Reversal must be ordered, as hereinabove indicated, for repleading. Since by granting this relief we are in effect permitting Kirkpatrick to withdraw his guilty pleas the ends of justice require that the status quo ante be restored by reviving the dismissed counts and requiring defendant to plead to the counts as originally charged as well as to the count added by amendment in action No. A-581416. (See In re Sutherland, supra, 6 Cal.3d 666, 672.)
Judgments are reversed and remanded for further proceedings in accordance with the views herein expressed.
Wright, C. J., Peters, J., Tobriner, J., and Sullivan, J., concurred.
BURKE, J.—I concur under the compulsion of People v. Rizer, 5 Cal.3d 35 [95 Cal.Rptr. 23, 484 P.2d 1367].