Townsend v. Superior Court

TOBRINER, J.

I dissent.

The majority characterize this case as one involving a conflict between a defendant’s right to a speedy trial and his right to effective assistance of counsel. With all due respect, I believe that a careful examination of the realities of this case reveals no such conflict. Rather, the fundamental question at. issue is whether a defendant’s right to a speedy trial can in *787 practice be denied to an indigent defendant by a county’s appointment of a counsel who is too heavily burdened and overworked to bring the defendant’s case to an expeditious trial.

In the instant situation, defendant faced a charge of possession of narcotics. Because of his indigence the court appointed the public defender to represent him. Defendant remained incarcerated following arraignment. He continuously claimed his right to be tried within 60 days and vociferously refused to consent to any continuances. Nevertheless, his counsel, the public defender, requested a number of such continuances; these requests for more time, entered over defendant’s objections, did not emanate from the complexity of defendant’s case or from misconduct of defendant but from the public defender’s own heavy case load. Although he was in no way responsible for, and did not acquiesce in, the delay, defendant was compelled to wait in jail for over 100 days following arraignment without being brought to trial.

The majority consider the initial question in this case to be whether counsel could waive the rights described in section 1382 without defendant’s consent. Concluding that counsel has such power, the majority characterize the 60-day period in section 1382 as “merely” a statutory right to a speedy trial rather than a constitutional right. This conclusion may be questioned on its own terms, for we have long held that section 1382 embodies a legislative interpretation of the state constitutional right to a speedy trial as guaranteed by article I, section 15 of the California Constitution. (People v. Morino (1890) 85 Cal. 515, 517 [ 24 P. 892 ]; In re Begerow (1901) 133 Cal. 349, 352 [ 65 P. 828 ]; Harris v. Municipal Court (1930) 209 Cal. 55, 61 [ 285 P. 699 ]; People v. Clark (1965) 62 Cal.2d 870, 882 [ 44 Cal.Rptr. 784 , 402 P.2d 856 ]; Crockett v. Superior Court (1975) 14 Cal.3d 433, 438-439 [ 121 Cal.Rptr. 457 , 535 P.2d 321 ].) 1

*788 Assuming, however, that a counsel generally does have authority, incident to the power to control trial tactics, to decide that the complexity of a defendant’s case or the need for investigation warrants a waiver of the statutory speedy trial provision, it does not follow that the waiver in the instant case was proper. Here, defendant’s defense was not so “complex and myriad” that counsel needed additional time to prepare effectively for trial. (See People v. Powell (1974) 40 Cal.App.3d 107 [ 115 Cal.Rptr. 109 ].) 2 If the delay had resulted from such circumstances, then there would be some justification for the majority’s characterization of the case as a conflict between defendant’s right to a speedy trial and his right to effective counsel. Here, however, the delay ensued simply because the defense counsel was overburdened with other cases which took precedence over that of the defendant.

If an affluent defendant chooses to employ a 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. He must take his turn in the public defender’s long line of undertakings and await a trial date after the expiration of the 60-day period contemplated by section 1382 when the beleaguered public defender has finally disposed of all the preceding cases. The *789 “trailing” practice, as thus employed, completely negates the indigent defendant’s right to a speedy trial.

Moreover, the above discussion additionally demonstrates that the “trailing” practice, as pursued in this case, also denied defendant the equal protection of the laws, for it deprived him of the benefits of section 1382 simply on the basis of his indigency. The courts have repeatedly held, of course, that when a state grants a right to criminal defendants generally, it must guarantee that indigent defendants can avail themselves of the right. In Griffin v. Illinois (1956) 351 U.S. 12, 17-19 [ 100 L.Ed. 891 , 898-899, 76 S.Ct. 585 , 55 A.L.R.2d 1055 ], the seminal decision in this long line of cases, the United States Supreme Court observed: “Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ ... In criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. . . . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” 3

On its face, Penal Code section 1382 guarantees to all defendants, rich or poor, the right to be brought to trial within 60 days of arraignment. In the instant case, however, defendant suffered a denial of this section’s protection simply because his indigency necessitated resort to the understaffed public defender’s office and the trailing practice permitted appointed counsel to waive defendant’s right to speedy trial over defendant’s objection. Because an affluent defendant could not be compelled to abide by his counsel’s waiver in similar circumstances, the trailing practice denies an indigent defendant the equal protection of the laws.

This result cannot be justified on the ground that an indigent defendant has no right to the appointment of a particular attorney and must be satisfied with whatever counsel the state chooses to afford him. *790 (See, e.g., People v. Massie (1967) 66 Cal.2d 899 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ].) Although it is true that Gideon v. Wainwright (1963) 372 U.S. 335 [ 9 L.Ed.2d 799 , 83 S.Ct. 792 , 93 A.L.R.2d 733 ] and its progeny place no absolute strictures on the states in their assignment of counsel, the controlling precedents of both the United States Supreme Court and this court establish beyond dispute that to satisfy constitutional standards an attorney appointed to represent an indigent must be capable of affording such defendant the effective assistance of counsel. (See, e.g., In re Saunders (1970) 2 Cal.3d 1033, 1041 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ]; In re Williams (1969) 1 Cal.3d 168, 176 [ 81 Cal.Rptr. 784 , 460 P.2d 984 ]; Powell v. State of Alabama (1932) 287 U.S. 45, 72 [ 77 L.Ed. 158, 172 , 53 S.Ct. 55 , 84 A.L.R. 527 ].) 4 A county does not meet this constitutional obligation when it appoints a counsel who, because of his own heavy caseload, is unable to bring the defendant’s case to trial within the statutorily mandated time period. The state cannot rely upon the obligations which an appointed counsel owes to other clients to excuse its denial of the effective protection of the present defendant’s right to a speedy trial.

As I see it, this case presents one relatively straightforward and fundamental question: May a county effectively repeal an indigent defendant’s right to a speedy trial simply by refusing to appoint a sufficient number of public defenders? While I do not disparage the financial burdens currently faced by local authorities, it has long been clear that such considerations cannot justify the deprivation of a criminal defendant’s constitutional rights.

I therefore conclude that defendant has been improperly denied his right to a speedy trial. Accordingly, I would issue the requested writ of prohibition.

In Harris , we wrote: “What is a ‘speedy trial,’ as those words are used in the Constitution? The legislature in section 1382 of the Penal Code has declared that unless a defendant in a felony case has been brought to trial within sixty days after the finding of the indictment or the filing of the information, the court must, in the absence of good cause shown for the delay, dismiss the prosecution. Thus the legislature by necessary inference has said that a trial delayed more than sixty days without good cause is not a speedy trial, and the courts have not hesitated to adopt and enforce the legislative interpretation of the constitutional provision.” ( 209 Cal. at p. 61 .)

The cases cited by the majority to support the proposition that Penal Code section 1382 is merely a statutory right, rather than a constitutional requirement, are not on point. In Sykes v. Superior Court (1973) 9 Cal.3d 83 [ 106 Cal.Rptr. 786 , 507 P.2d 90 ], we held that article I, section 15 of the state Constitution is a self-executing provision and therefore may govern matters not specifically discussed in the interpretative statutes. Nevertheless, we specifically stated that failure to observe the statutory time limits *788 prescribed by Penal Code section 1382 “is prima facie in violation of a defendant’s constitutional right.” ( 9 Cal.3d 83, 89 .)

Barko v. Wingo (1972) 407 U.S. 514 [ 33 L.Ed.2d 101 , 92 S.Ct. 2182 ], cited by the majority to support the proposition that the constitutional right to a speedy trial cannot be quantified into a specific time period, dealt only with the federal right, as guaranteed by the Sixth Amendment. The opinion did not deal with state constitutional guarantees of the right to a speedy trial. Indeed, the court in Barker specifically stated: “We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that a speedy trial can be quantified into a specific number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.” ( 407 U.S. 514, 523 [ 33 L.Ed.2d 101, 113 ].) In Sykes v. Superior Court, supra, 9 Cal.3d 83, 91 , we wrote that “There are significant reasons why the balancing test employed by the Supreme Court in interpreting the federal constitutional provision is not applicable in interpreting our constitutional provision.... A material distinction is the absence of any statutory language which implements the federal constitutional guarantee while the state constitutional guarantee is so implemented....”

Moreover, unlike People v. Floyd (1970) 1 Cal.3d 694 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ] or People v. Bryant (1970) 5 Cal.App.3d 563 [ 85 Cal.Rptr. 388 ], defendant’s delay in being brought to trial was not due to his own misconduct.

The Griffin principle, initially addressed to the state’s obligation to provide an indigent defendant with a free transcript on appeal, has been applied in a great variety of circumstances. (See, e.g., Burns v. Ohio (1959) 360 U.S. 252 [ 3 L.Ed.2d 1209 , 79 S.Ct. 1164 ] [right of an indigent to avoid filing fee]; Douglas v. California (1963) 372 U.S. 353 [ 9 L.Ed.2d 811 , 83 S.Ct. 814 ] [right of an indigent to obtain appointed counsel, if the state guarantees a right to counsel on appeal]; Anders v. California (1967) 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ] [right of an indigent to prosecute a “frivolous” appeal, if the state extends this right to others]; see also McCrary v. Indiana (1960) 364 U.S. 277 [ 4 L.Ed.2d 1706 , 80 S.Ct. 1410 ]; Entsminger v. Iowa (1967) 386 U.S. 748, 751 [ 18 L.Ed.2d 501, 503-504 , 87 S.Ct. 1402 ]; Williams v. Oklahoma City (1969) 395 U.S. 458 [ 23 L.Ed.2d 440 , 89 S.Ct. 1818 ].)

In In re Saunders (1970) 2 Cal.3d 1033, 1041 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ], we specifically declared: “The constitutional right to the assistance of counsel in a criminal case ... includes the guarantee that such assistance be ‘effective.’ ”