People v. Johnson

RICHARDSON, J.

I concur in the judgment insofar as it affirms defendant’s conviction. I respectfully dissent, however, from the majority’s holdings regarding the right to speedy trial.

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 [1970] 1 Cal.3d 694, 706-707 [ 83 *581 Cal.Rptr. 608 , 464 P.2d 64 ].) In contrast, however, the statutory [italics in original] right to be tried within 60 days ([Pen. Code] § 1382, subd. 2) cannot properly be termed ‘fundamental’ in the foregoing sense and therefore beyond counsel’s primary control. Being of statutory origin, a defendant’s rights under section 1382 are ‘merely supplementary to and a construction of the Constitution. [Citations.]’ (Sykes v. Superior Court [1973] 9 Cal.3d 83, 89 [ 106 Cal.Rptr. 786 , 507 P.2d 90 ].) They do not carry the force or weight of constitutionally mandated imperatives. In this connection we think it significant that the United States Supreme Court has clearly rejected the proposition that the constitutional right to a speedy trial ‘... can be quantified into a specified number of days or months.’ (Barker v. Wingo (1972) 407 U.S. 514, 523 [ 33 L.Ed.2d 101, 113 , 92 S.Ct. 2182 ].)” (15 Cal.3d at pp. 781-782, italics added.)

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. *582 App.3d 913 at page 915 [ 115 Cal.Rptr. 619 ], the Court of Appeal upheld the trial court’s grant of continuances at counsel’s request where no affirmative consent was obtained from the defendant, the court stating in dictum that ‘even if appellant had voiced an objection, his attorney would have had authority to seek continuance over the client’s protest. [Citations.]’” ( 15 Cal.3d at p. 780 , italics added.)

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?

*583 The majority, of course, is unable to require the provision of funds for the procurement of additional defense attorneys. It lacks the power to direct the construction of more courtrooms. It may not reorder the priorities of local government, for these are matters entirely within the province of state, county, and municipal entities in evaluating local needs. Rather, the present majority imposes a cruder solution to the problem. By main force it directs the dismissal of all those criminal proceedings involving incarcerated defendants, which because of “calendar congestion” cannot be brought to trial within the 60-day period. The majority thereby assures the discharge of a significant number of criminal cases which, through no fault of the People or the prosecution, cannot be brought to trial within 60 days. The majority apparently hopes that this spectre of wholesale dismissal of criminal cases will somehow cause a shock effect, thereby serving as a whiplash to force obstinate state and local governments to restructure the criminal justice system.

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 thé 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 pro *584 nouncement, unless tempered by a speedy legislative response, burdened trial courts will find themselves faced ever more frequently with the inevitable decision either to force unprepared counsel to proceed to trial or to risk a forced dismissal because the defendant personally refuses to waive time.

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 *585 public that may become the victims of a judicial interpretation of such unnecessary rigidity.

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 *586 most certainly does not in the instant case, we should defer to trial counsel’s decisions regarding the management of the trial for it is his responsibility to conduct it, and do so in a manner and according to standards which we have carefully prescribed very recently in People v. Pope (1979) 23 Cal.3d 412, 425 [ 152 Cal.Rptr. 732 , 590 P.2d 859 ]. Trial courts can be trusted to monitor the cases carefully, constantly sensitive and alert to any instances of abuse or overreaching.

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.