People v. Cave

• Decision Date: 20 June 1978
• Docket Number: Cr. 3052
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eugene Delbert CAVE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 371

147 Cal.Rptr. 371

81 Cal.App.3d 957

The PEOPLE, Plaintiff and Respondent, v. Eugene Delbert CAVE, Defendant and Appellant.

Cr. 3052.

Court of Appeal, Fifth District, California.

June 20, 1978.

As Modified June 29, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, and Tom F. Lundy, Deputy State Public Defender, Sacramento, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HOPPER, Associate Justice.

This case concerns the alleged denial of the right of a prisoner to a speedy trial and improper deprivation of his opportunity to exercise the right to a speedy trial.

The facts are undisputed. On October 14, 1975, appellant Eugene Delbert Cave allegedly sold one gram of heroin to Modesto undercover agent Thomas Bazan. Officer Bazan testified that he and an informant, Charles Robinson, drove to appellant's house in Modesto. Robinson knocked on appellant's door, spoke to him briefly, and then returned with appellant to Bazan's car. At appellant's direction they drove to Oak Street, Bazan gave appellant $25, and appellant entered two residences. Upon his return to the car, appellant gave Bazan two balloons containing a substance later determined to be heroin. Robinson was present throughout the entire transaction. He continued to act as an informer-agent for the Stanislaus County Drug Enforcement Unit (SCDEU) until January 1976. For some time after the October 14, 1975, sale Bazan was acting in an undercover capacity in a narcotic-buyers program run by SCDEU. The day after the sale, Bazan identified appellant as being his seller from the preceding night.

Appellant was arrested on January 1, 1976, for a burglary in Mountain View, California. He was incarcerated in the county jail until his conviction in Santa Clara County on March 4, 1976. He was then transferred to state prison in Vacaville. It was stipulated by counsel that appellant's burglary arrest appeared on his "rap sheet" by January 20, 1976, and his incarceration in state prison appeared on March 19, 1976.

A complaint was filed and an arrest warrant for the Stanislaus County narcotics violation was issued on March 16, 1976. Attempts were made to serve the warrant at appellant's house on March 26 and April 12, 1976. On April 20, 1976, the Stanislaus County Sheriff's Department Detective Bureau informed SCDEU that appellant was in state prison at Vacaville. The detective bureau had a bench warrant against appellant for violation of probation and offered to notify SCDEU when appellant was brought back to the county on that charge.

The sole reason given for the April 20-September 23, 1976, delay was that SCDEU's "standard procedure" was to postpone service of an arrest warrant until the defendant was returned to that jurisdiction. No attack is made on the post-arrest timetable.

Appellant was returned to Stanislaus County on the bench warrant for probation violation on September 22, 1976. He was arrested for the present violation on September 23, 1976, and arraigned on that charge on September 27, 1976. No "hold" or "detainer" was lodged against appellant for the present charge and there is no evidence that he had been informed of that charge until he was arrested and arraigned. No attempt was made to find Robinson by either the prosecution or the defense until October 26, 1976. Robinson was not present at either the preliminary hearing or the trial.

On October 14, 1976, an information was filed in the Stanislaus County Superior Court charging appellant with the sale of heroin. Appellant was arraigned on October 18, 1976, and entered a plea of not guilty. On November 29, 1976, appellant filed a motion to dismiss the information on the grounds that he was denied his constitutional right to a speedy trial and that further prosecution would deny him due process of law. That matter was heard and denied.

Thereafter, appellant waived jury trial and submitted the case on the transcript of the preliminary examination. Appellant was found guilty and sentenced to prison for the term prescribed by law, to be served concurrently with any other present sentence.

At trial, William Catzalco, an investigator with the public defender's office, testified that on October 26, 1976, and on November 9, 1976, he tried to locate Robinson at a former address in Modesto, but that Robinson's neighbors, fellow residents, mailman, and landlord had no information as to his whereabouts. Catzalco's November 2, 1976, interview with Robinson's sister yielded information that he was supposed to be in the Fresno area. However, further checking with the telephone company proved negative, as had an earlier checking of the Modesto listings. Bazan testified that he had tried to serve Robinson with a subpoena a week before the trial scheduled for October 29, 1976, but that a check at his former residence turned up no leads. This being his last lead, Bazan made no further efforts, and, as of the hearing date, SCDEU was no longer attempting to serve Robinson.

After testimony at the hearing held three days prior to the scheduled trial date, and during argument on the motion, the deputy district attorney observed, "As to where the missing witness, Charles Robinson is, . . . We are still attempting to locate Mr. Robinson, and, in fact, we do have a new address for him as he is currently on probation. His absence would prejudice our case too, I think, but we are attempting to locate him and hopefully we'll have him here by Monday." The prosecution introduced no testimony as to current efforts to locate Mr. Robinson. Neither side requested a continuance of the trial. The trial court denied appellant's motion, explaining:

"In this particular case, I am impressed with the, with the fact that this is a very close case, and the prejudice which has been shown to the Defendant in this particular case. However, I find that because of the type of program involved, the drug-buy program, and the failure or refusal of the People to disclose the agent until a time subsequent to, until the program had been completed, was reasonable grounds not to file the Complaint any sooner than they did, and that I find that there is no unreasonable delay to this Defendant, and his request and Motion to Dismiss for lack of speedy trial and lack of prosecution is denied.

"I would say this, that it is a very, very close case, but the motion is denied."

The trial court further ruled that Robinson was a material witness as to the charged offense.

Our state Constitution provides: "The defendant in a criminal cause has the right to a speedy public trial, . . . " (Cal.Const., art. I, § 15.)

An unreasonable post-complaint or post-indictment delay constitutes a denial of one's right to a speedy trial. (People v. Hannon (1977) 19 Cal.3d 588, 608, 138 Cal.Rptr. 885, 564 P.2d 1203; Jones v. Superior Court (1970) 3 Cal.3d 734, 739-740, 91 Cal.Rptr. 578, 478 P.2d 10; People v. Archerd (1970) 3 Cal.3d 615, 639-640, 91 Cal.Rptr. 397, 477 P.2d 421.) Generally, when there has been no violation of a specific legislative implementation of the right to a speedy trial (see, e. g., Pen.Code, §§ 739, 825, 1381-1387), an accused must show that prejudice has resulted because of the post-complaint or post-indictment delay. Once such a showing has been made, there must be proof of a legitimate justification for the delay, and this requires evidence of a valid "police purpose." If both prejudice and a valid "police purpose" are shown, the prejudicial effect of the delay must be weighed against the justification. (Jones v. Superior Court, supra, 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10; People v. Vanderburg (1973) 32 Cal.App.3d 526, 531, 108 Cal.Rptr. 104; see Penney v. Superior Court (1972)28 Cal.App.3d 941, 950-953, 105 Cal.Rptr. 162.)

The trial court's application of the test will not be disturbed in the absence of an abuse of discretion (People v. Superior Court (Lerma) (1975)48 Cal.App.3d 1003, 1007, 122 Cal.Rptr. 267; People v. Ludviksen (1970) 8 Cal.App.3d 996, 999, 87 Cal.Rptr. 781).

A person serving a term in state prison cannot complain about the denial of a speedy trial because of a post-complaint delay regarding a California criminal charge pending at or during his imprisonment unless he first makes a request that he be brought to trial on the pending charge. (See In re Mugica (1968) 69 Cal.2d 516, 523, 72 Cal.Rptr. 645, 446 P.2d 525; People v. Godlewski (1943) 22 Cal.2d 677, 683-684, 140 P.2d 381; People v. MacDonald (1973) 36 Cal.App.3d 103, 114-115, 111 Cal.Rptr. 266; ABA Standards, Speedy Trial (Approved Draft 1968) std. 3.1 and com. 3.1(c), pp. 36-38; cf. Smith v. Hooey (1969) 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607.) Once such a request is made, failure to bring such prisoner to trial within 90 days thereafter must result in dismissal of the pending charge. (Pen.Code, § 1381.) No showing of good cause will excuse such failure. Further, in order to activate the demand requirement, the law establishes that such prisoner is entitled to reasonably prompt notice of the pending charge through the filing of a "detainer," "hold," or similar document; otherwise, a prosecutor could refrain from lodging a "detainer" or "hold," thereby thwarting the prisoner's right to demand a speedy trial. (See In re Mugica, supra, 69 Cal.2d 516, 524, 72 Cal.Rptr. 645, 446 P.2d 525; 2 Cal. Criminal Law Practice (Cont.Ed.Bar 1969) § 23.28, p. 498; ABA Standards, Speedy Trial (Approved Draft 1968) std. 3.1 and com. 3.1(a), pp. 34-35.) Accordingly, when the prosecuting authorities know that the person charged with a criminal offense in their jurisdiction is serving a prison term in a California penal institution, they should either...