Owens v. Superior Court of Los Angeles County

Decision Date13 September 1979
Citation158 Cal.Rptr. 441,96 Cal.App.3d 881
CourtCalifornia Court of Appeals Court of Appeals
PartiesRichard OWENS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 55688.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Patrick G. Rogan and John L. Ryan, Deputy Public Defenders, for petitioner.

No appearance by respondent.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Maurice H. Oppenheim, Deputy Dist. Attys., for real party in interest.

FILES, Presiding Justice.

This original application for a writ of mandate or prohibition requires us to decide the continued viability of the line of cases holding that the 60-day period prescribed in Penal Code section 1382, subdivision (2), for bringing a case to trial excludes time during which the trial was delayed at the request of the defendant. Despite the novel theory raised by petitioner, we conclude that the authority of the past decisions is unimpaired.

An information filed in the superior court on October 18, 1978, charged petitioner (hereinafter called defendant) with robbery. He pleaded not guilty and the trial was set for November 17, 1978. On that date, on motion of defendant, the trial was reset for January 4, 1979. On that date defendant's attorney reported that he was engaged in another trial, and suggested resetting on January 11. The court continued the trial to January 8 and ordered the witnesses to be available on that date. On January 8 defendant's attorney was still busy. The case trailed until the morning of January 11, when defendant's attorney announced he was ready. The prosecutor said he did not have his witnesses. The case then trailed to Monday, January 15, but the prosecutor still did not know when his witnesses would be available. Defendant's motion to dismiss was denied without prejudice, and the case trailed to January 22.

On January 22 defendant made a motion to dismiss upon the ground that the case had not been tried within 10 days after the date (January 11) on which defendant had announced ready. 1

The prosecutor presented the testimony of an investigator who related his efforts to locate the victims of the two robberies, and expressed his expectation that both would be available the following day. The prosecutor also argued that the 60-day period allowed by Penal Code section 1382 had not expired because the delay caused by defendant must be excluded from the computation.

The court then granted the motion of the People to put the case over one more day.

On January 23 the People's witnesses were present and the prosecutor was ready to proceed. The defendant renewed his motion to dismiss. The court said: "Well, yesterday I ruled that the People had shown sufficient grounds for continuing the matter, good cause, for one day to bring in the witnesses and they have brought in the witnesses. Accordingly, the motion will be denied."

Defendant then requested a continuance in order that he might seek a writ of prohibition in the Court of Appeal. That motion was granted and this proceeding was commenced.

The applicable precedents are People v. Harrison (1960) 182 Cal.App.2d 758, 6 Cal.Rptr. 345; People v. Burch (1961) 196 Cal.App.2d 754, 761, 17 Cal.Rptr. 102; People v. Flores (1968) 262 Cal.App.2d 313, 320, 68 Cal.Rptr. 669; People v. Conway (1969) 271 Cal.App.2d 15, 22, 76 Cal.Rptr. 251. Each of these cases held that in computing the 60-day period allowed by section 1382, delay requested by defendant must be excluded. 2 More recently this rule was stated as dictum in Hankla v. Municipal Court (1972) 26 Cal.App.3d 342, 361, 102 Cal.Rptr. 896. None of these cases has been overruled or criticized in any reported decision. 3 The basis of the rule was expressed by Justice Tobriner in Burch, supra, 196 Cal.App.2d at page 762, 17 Cal.Rptr. at page 106: "We find somewhat anomalous appellant's argument that a delay to which he contributed, by requesting that the trial not be set during his witness' 30-day absence, defeated his constitutional and statutory right to a speedy trial."

In the present case both sides were ready on January 23, 1979, which was the 97th day following the filing of the information on October 18, 1978.

The 48-day period from November 17, 1978, to January 4, 1979, was attributable to defendant's request. 4

The seven day delay from January 4 to January 11 was also attributable to defendant even though defendant's counsel stated "He (defendant) has indicated to me that he is not willing to waive time." Defendant was in fact not ready for trial on January 4 because his attorney was legitimately committed in another case. (See Townsend v. Superior Court (1975) 15 Cal.3d 774, 783, 126 Cal.Rptr. 251, 543 P.2d 619.)

Subtracting the 55 days attributable to defendant from the 97 calendar days establishes January 23, 1979, as the 42nd day of the allowable 60 days. Hence the case was not subject to dismissal under section 1382.

Defendant's argument is based upon an interpretation of the 1959 amendment to section 1382. Prior to that amendment the statute required dismissal "If a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within 60 days after the finding of the indictment, or filing of the information . . . ."

A study published in the Seventeenth Biennial Report of the Judicial Council of California (1959) at page 31 pointed out that this section needed clarification. One defect was that it literally excluded from its operation all cases postponed upon a defendant's application. The Council proposed an amendment to section 1382 which was enacted by the 1959 Legislature, effective September 18, 1959. The language which applies to the present case remains as it was then amended. (See fn. 1, Supra.)

The significant change in subdivision 2 was to eliminate the words "whose trial has not been postponed upon his (defendant's) application" in the opening clause, and add the following at the end of the subdivision: "except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter."

The purpose and effect of the 10-day provision was to allow a grace period for bringing the case to trial after the expiration of the time to which the defendant had consented if that time was beyond the 60-day limitation. Prior to the 1959 amendment there was no express statutory limit for a defendant who had requested a postponement, but some decisions had indicated that the defendant was entitled to go to trial on the last date to which he had consented unless good cause for further delay was shown. (See In re Lopez (1952) 39 Cal.2d 118, 120, 245 P.2d 1; People v. Weiss (1958) 50 Cal.2d 535, 559, 327 P.2d 527.) It was to provide a reasonable solution to that problem that the 10-day exception was added. (See Malengo v. Municipal Court (1961) 56 Cal.2d 813, 815, 17 Cal.Rptr. 10, 366 P.2d 453; Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 133, 105 Cal.Rptr. 391.)

Defendant argues that the 1959 amendment means that even though he causes the delay beyond 60 calendar days from the filing of the information, the case must be tried within 10 days after his delay has ceased, unless the People show good cause.

There are two answers to this contention:

First, all four of the cases cited above, which held that the defendant's delay is not counted in the 60-day period, were decided after the 1959 amendment became effective, and none so interpreted the statute.

Second, the 1959 amendment does not purport to affect the manner in which the 60-day period is counted. The ten-day provision, added in 1959, is an exception to the otherwise applicable 60-day limitation. It is an exception which applies after the expiration of the 60 days allowed by the preceding clause. 5

In Townsend v. Superior Court, supra, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619, quoted in the dissent, the issue was the application of the 10-day grace period after the expiration of the 60-day period. In that case the defendant's first request for delay came after the 60-day period had expired. Townsend does not decide or discuss how the 60-day period is calculated. The language quoted from Townsend does not relate to a defendant's request for delay before the 60 days have expired.

Nor does People v. Rodriguez (1971) 15 Cal.App.3d 481, 93 Cal.Rptr. 182 have any relevance to the issue here. Rodriguez dealt with the question of good cause, an issue not reached in the present proceeding.

Inasmuch as both sides were ready for trial on January 23, 1979, the 42nd of the 60 days allowed by section 1382, the motion to dismiss was properly denied.

The petition for a writ of prohibition or mandate is denied.

ALARCON, J., concurs.

JEFFERSON, Associate Justice, dissenting.

I dissent.

Contrary to the view of the majority, I would grant the petition for writ of mandate and order the dismissal of the action pursuant to the provisions of Penal Code section 1382, subdivision 2.

The majority poses the issue before us as one that requires a decision regarding the continued viability of a line of cases holding that the 60-day period prescribed in Penal Code section 1382, subdivision 2, for bringing a case to trial, excludes the period of time during which the trial was delayed at the request of the defendant.

The majority labels the position of petitioner as posing a "novel" theory and concludes that the authority of the past decisions relied upon by the majority remains unimpaired. In my view the legal theory advanced by petitioner is not a novel theory at all, but, on the contrary, represents a legal position that has...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT