Greenberger v. Superior Court

• Decision Date: 22 March 1990
• Docket Number: No. B047792,B047792
• Citation: 267 Cal.Rptr. 849,219 Cal.App.3d 487
• Court: California Court of Appeals Court of Appeals
• Parties: Karen Delayne GREENBERGER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

Page 849

267 Cal.Rptr. 849

219 Cal.App.3d 487

Karen Delayne GREENBERGER, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The PEOPLE, Real Party in Interest.

No. B047792.

Court of Appeal, Second District, Division 7, California.

March 22, 1990.

Review Denied June 27, 1990.

Bierman, Shohat & Loewy, Edward R. Shohat, Miami, Fla. and Marcia A. Morrissey, Los Angeles, for petitioner.

No appearance for respondent.

Ira Reiner, Dist. Atty., Donald J. Kaplan, and Brent Riggs, Deputy Dist. Attys., for real party in interest.

FRED WOODS, Associate Justice.

Does the statutory preference for a joint trial (Pen.Code, § 1098) ¹ constitute good cause (§ 1382) to delay for six months the murder trial of an in-custody defendant? Our answer is yes, if, as in the instant case, the circumstances are sufficiently exceptional.

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 1983, according to the information, Roy Radin was kidnapped and murdered. On May 3, 1984, June Mincher was murdered and Christian Pierce was the victim of an attempted murder.

Not until September 27, 1988, five and one-half years after the Radin murder, were charges filed. Petitioner, William Molony Mentzer, Alex Lamota Marti, and Robert Ulmer Lowe were charged with having murdered Radin. Mentzer, Lowe, and Robert Leroy Deremer were charged with having murdered Mincher.

On October 2, 1988, petitioner was arrested in Orlando, Florida. About two and a half months later, on December 27, 1988, she waived extradition and on January 12, 1989, was arraigned on the complaint.

Sometime before May 12, 1989, a preliminary hearing for only Lowe and/or Deremer was held.

On May 12, 1989, a second preliminary hearing, this one for petitioner, Mentzer, and Marti began. It did not end until two months later, on July 12, 1989. All three were held to answer.

The information charged each of them with the capital murder (§ 187, subd. (a)) and kidnapping (§ 207) of Roy Radin. It also charged Mentzer, in separate counts, with the capital murder of June Mincher and the attempted murder of Christian Pierce (§§ 664/187, subd. (a)).

Petitioner was arraigned on August 4, 1989, and had a trial setting hearing on September 7, 1989. At that hearing petitioner and her two codefendants all waived time until January 8, 1990, the designated trial date.

On November 6, 1989, petitioner's severance motion was denied but the court did sever the Radin charges (counts I and IV) from the Mincher and Pierce charges (counts II and III).

On December 4, 1989, Mentzer and Marti each moved for a lengthy continuance in order to adequately prepare for trial. Marti filed declarations ² by his investigator and one of his attorneys detailing pre-trial investigation deemed essential to his defense. Counsel for Mentzer, at side bar, similarly described extensive investigation necessary for his defense. ³ The court found good cause, granted the continuance motions, and set the trial for all three defendants on July 23, 1990. Petitioner, although she did not oppose the continuance for her codefendants, did object to having her trial delayed. She unequivocally did not waive time and insisted upon a January 8, 1990 trial.

On January 16, 1990, petitioner filed a motion to dismiss which was heard and denied on January 23, 1990.

Thereafter, on January 29, 1990, petitioner filed this petition seeking a writ of mandate and/or prohibition directing the trial court to dismiss the information because she had not been brought to trial within the section 1382 statutory period.

DISCUSSION

The right to a speedy trial

The right of a criminal defendant to a speedy trial is protected by both the United States Constitution (U.S. Const., 6th Amend.) and the California Constitution (Cal. Const., art. I, § 15). This fundamental constitutional right is "supplemented" (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781, 126 Cal.Rptr. 251, 543 P.2d 619) by statutes.

Section 1382 provides that "the court, unless good cause to the contrary is shown, shall order the action to be dismissed ... [w]hen a defendant is not brought to trial in a superior court within 60 days after the ... filing of the information...." (Emphasis added.) The 60 day period may be extended "at the request of the defendant or with the defendant's consent." (Ibid.)

Section 1098, potentially intersecting section 1382, provides in part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials."

We begin our consideration of the interplay of these statutory provisions, the interests they promote, and how they bear on section 1382 good cause by examining those cases finding that trial delay was without good cause.

Not "good cause"

In People v. Wilson (1963) 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452 the defendant On appeal, the California Supreme Court summarily found that "[o]n the facts before us there was not a sufficient showing of good cause for such delay." (Id. at p. 145, 32 Cal.Rptr. 44, 383 P.2d 452.) Thus, the trial court had erred in denying defendant's motion to dismiss and the Court of Appeal had erred in denying his writ. But unlike those procedural settings where no prejudice need be shown, on appeal defendant must show not only error but prejudice. The Court stated "it should be kept in mind that we are dealing not with a favored right such as the right to appear and defend in person and with counsel [citations] but with a privilege personal to the defendant which will be deemed to be waived if not asserted by him in timely fashion." (Id. at p. 148, 32 Cal.Rptr. 44, 383 P.2d 452.)

                charged with murdering his wife and assaulting her companion, consented to a trial beyond 60 days, to August 25.  On that date he and his attorney announced ready.  But the prosecutor moved for a 67 day continuance, to October 31, on the grounds that he had just finished a long trial, was preparing a motion in another case, and had not yet taken his vacation.   The court granted the motion and on October 25 denied defendant's motion to dismiss.  The Court of Appeal denied his writ and the defendant was tried and convicted
                

It was also the prosecutor in Batey v. Superior Court (1977) 71 Cal.App.3d 952, 139 Cal.Rptr. 689 who moved for trial continuances. Over defendant's objections, and based upon the prosecutor being engaged in another trial, the court first granted a 15 day continuance and then a 75 day continuance. Following the denial of his motion to dismiss the defendant sought a writ.

In granting the writ the Court of Appeal found that just being in trial does not constitute good cause to delay other trials. A prosecutor with multiple case assignments must anticipate trial conflicts and make an effort to have another prosecutor be prepared to timely try the case. (Id. at p. 957, 139 Cal.Rptr. 689.) The state was at fault for failing to do so and hence there was no good cause to grant the second, lengthy continuance.

People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738 also found the state at fault and therefore held unexcused the delay of the defendant's trial. Here it was a public defender with a heavy caseload and a chronically congested trial court, that denied the defendant a speedy trial. Absent exceptional circumstances, Johnson held, such conditions are not good cause for denying an in custody defendant a speedy trial.

Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 182 Cal.Rptr. 703, relied upon by petitioner, involved defendants jointly charged with burglary. Petitioner's codefendant ⁴ was represented by the public defender who "advised the court that he was engaged in another criminal trial and was assigned to two other 'must-go' criminal trials immediately thereafter." (Id. at p. 887, 182 Cal.Rptr. 703.) The court, over petitioner's objection, granted two continuances totalling 21 days.

In holding that the continuances were without good cause Sanchez relied upon and applied People v. Johnson. It stated, "[t]he rule stated in Johnson is equally applicable to the present underlying prosecution where delay beyond the statutory period is caused by the unavailability of appointed counsel for a codefendant rather than petitioner's own appointed counsel. The cause of the delay is the same: failure of the state to provide the facilities and personnel needed to implement the right to speedy trial." (Id. at p. 890, 182 Cal.Rptr. 703.)

People v. Escarcega (1986) 186 Cal.App.3d 379, 230 Cal.Rptr. 638 is even more a direct application of Johnson than is Sanchez. Instead of an overburdened public defender, as in Johnson, it was court appointed private counsel whose overburdened calendar deprived the defendant of his statutory speedy trial. In finding this delay, requested by appointed counsel, "bad cause," the court, quoting Johnson As in Sanchez the People sought refuge in section 1098. In an overly broad response the Court remarked, "[t]he preference for a joint trial of jointly charged defendants does not constitute good cause to delay one defendant's trial beyond the time period set forth in Penal Code section 1382, subdivision 2." (Id. at p. 386, fn. 4, 230 Cal.Rptr. 638.)

stated: " 'Thus the state cannot rely upon the obligations which an appointed counsel owes to other clients to excuse its denial of a speedy trial to the instant defendant'." (Id. at p. 386, 230 Cal.Rptr. 638.)

Finally, People v. Cooper (1989) 216 Cal.App.3d 830, 265 Cal.Rptr. 58, indistinguishable from Sanchez, ⁵ found the congested calendar of appointed counsel for a codefendant "bad cause" to deny defendant a speedy trial. The Court, properly rejecting the People's section 1098 argument, in loose dictum opined "that neither judicial economy nor the prosecutor's convenience can outweigh a defendant's right to a speedy trial...." (Id. at p. 835, 265 Cal.Rptr. 58.)

In summary, good cause is not shown by ...