People v. Davis

• Citation: 265 Cal.App.2d 341,71 Cal.Rptr. 242
• Decision Date: 28 August 1968
• Docket Number: Cr. 13900
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie O. DAVIS, Defendant and Appellant.

Page 242

71 Cal.Rptr. 242

265 Cal.App.2d 341

The PEOPLE, Plaintiff and Respondent, v. Willie O. DAVIS, Defendant and Appellant.

Cr. 13900.

Court of Appeal, Second District, Division 3, California.

Aug. 28, 1968.

As Modified Sept. 16, 1968.

Rehearing Denied Sept. 30, 1968.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kallay, Deputy Atty. Gen., for respondent.

FORD, Presiding Justice.

The defendant was charged with the crime or robbery by an information containing three counts. In a trial by jury he was found guilty, each offense being determined to be of the first degree. The court sentenced him to be punished by imprisonment in the state prison. He has appealed from the judgment.

The first contention made is that the defendant was denied his constitutional right to a speedy trial. The information was filed on December 1, 1966. On the next day the public defender was appointed to represent the defendant, the defendant was arraigned, he pleaded not guilty and his trial was set for January 25, 1967. Since inadvertently the defendant was not transported by the Sheriff's office from jail to the court in its branch at Long Beach on January 25, 1967, the trial was continued to January 26, 1967. But no department of that branch was available for the trial of the case on January 26 and the matter was continued to January 27, on which day there was another continuance to January 30 for the same reason. The minutes of the court for the latter date state that on the motion of the defendant the court ordered the 'trial to trial to January 31, 1967.'

On January 31, the deputy public defender informed the court that he was still engaged in trial in another department and requested that the matter 'trial' until the next day. The defendant objected and asked that counsel be appointed for him from 'the bar association.' The court denied the request. The public defender stated that he had been urging the defendant to choose a date in the future, 'next week, eight or nine days from now,' when the deputy public defender would be reasonably free to proceed, and then he would have the defendant's witnesses subpoenaed for that date. The court continued the matter to the next day, February 1.

On February 1, the deputy public defender stated to the court that he believed that the defendant was objecting to having him as his attorney and further stated that he was not prepared to try the case, having been engaged in a robbery trial and having been in a kidnaping trial immediately before the robbery trial. The defendant stated that his constitutional right to a speedy trial had been violated since the sixty day period ¹ had expired on the previous day and the charges should be dismissed if he could not go to trial forthwith. The court denied the defendant's motion for dismissal. Upon the court's request that he name a date when he would be ready to try the case, the deputy public defender suggested February 10. Based upon the denial of his motion for dismissal the defendant again asked that counsel other than the public defender be appointed to represent him. That motion was denied. The deputy public defender thereafter stated that he had just finished a trial; he thought that he could be ready in the defendant's case on February 10. He further stated that he had completed about seventy-five per cent of the preparation for trial, but that the defendant had additional information which he had not received and which would have a bearing on the matter of preparation. Without the defendant's personal consent the court continued the case for trial to February 10, 1967, and stated tht the case would have priority on that date.

On February 10, 1967, the defendant requested that he be permitted to represent himself in lieu of representation by the public defender. After asking the defendant as to his education and age and as to whether he understood the defenses that might be available, the possible penalty in the event of conviction, and that he would be entitled to no special favors if he represented himself, the court ordered that the public defender be relieved and that the defendant be permitted to represent himself. The defendant stated that he was ready for trial.

When the case was thereafter called for trial on February 10, 1967, at 2:00 p.m., an attorney newly retained by the defendant appeared for him and made a motion to dismiss upon the ground that the defendant had been denied his right to a speedy trial. Part of his argument was as follows: 'If the Court did, then, on February 1st on its own motion or initiative cause this case to come over to the 10th, then the Court has erred because at the very most, the Court could have trailed this case from the 25th.' The motion was denied. The case thereupon proceeded to trial.

The defendant's proper recourse for the protection of his right to a speedy trial was to petition for a writ of mandate or of prohibition prior to the commencement of trial. (People v. Wilson, 60 Cal.2d 139, 149--150, 32 Cal.Rptr. 44, 383 P.2d 452.) He did not do so. While the order denying his motion to dismiss was not directly appealable, it may be reviewed on appeal from the judgment of conviction. It must be kept in mind, however, that the purpose of the right to a speedy trial is to protect the accused from having criminal charges pending against him for an undue length of time. In the case presently before this court the delay has ended and the defendant has been tried and convicted. Consequently the defendant cannot be relieved of a delay that no longer exists. The scope of appellate review of the matter on appeal from the judgment of conviction is limited to weighing the effect of the delay in bringing the defendant to trial and the fairness of the subsequent trial. A reversal cannot be based upon the delay unless the error was a prejudicial one. (People v. Wilson, supra, 60 Cal.2d 139, 150--152, 32 Cal.Rptr. 44, 383 P.2d 452.)

The record makes it clear that the primary cause of the delay of which the defendant complains was the fact that the deputy public defender, because of his heavy case load, was not prepared to try the case before February 10, 1967. The defendant had nothing to gain in going to trial earlier under such circumstances. But aside from that matter, the defendant has not shown that he was prejudiced in any respect by reason of the fact that the trial did not commence until February 10, 1967. An independent review of the record discloses no basis for a claim of prejudice. Measuring the effect of the delay in the light of the Chapman criterion (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) since a constitutional right is involved (Klopfer v. State of North Carolina, 386 U.S. 213, 222--226, 87 S.Ct. 988, 18 L.Ed. 1), we are satisfied beyond a reasonable doubt that the delay complained of did not contribute to the defendant's conviction and was harmless. Consequently there was not error of such a nature as to compel a reversal of the judgment.

The defendant also contends that the search of the automobile in which he was riding was illegal. One of the weapons found under the front seat was described as being a .38 Special Cobra revolver. There was evidence to support the inference that that revolver had been stolen by the defendant in the course of one of the robberies involved in the case and had been used by him in the perpetration of another.

The last of the three robberies charged occurred on October 29, 1966. A deputy sheriff testified that on November 5, 1966, at approximately 11:15 p.m. he arrested the defendant. He had observed a 1962 two-door Ford automobile, tan in color and bearing license nuber QXZ 697, 'run a signal' at Normandie and Imperial. The defendant and two other men were in the vehicle. The only reference in the record to the circumstances under which the search was made is contained in the following portion fo the direct examination of the officer: 'I asked him (the defendant) who the vehicle belongs to. He said his wife. I asked him if it was okay to search the vehicle. He said it was.' There was no cross-examination as to the matter of consent to the search and no further evidence with respect thereto was offered by either the People or the defendant.

When the People's exhibits which had been theretofore marked for indentification were offered in evidence, the objection made on behalf of the defendant was stated to be 'on the ground that sufficient foundation has not been laid as to each one of the objects, on the ground that they are irrelevant, immaterial.' There was no specific objection to the introduction in evidence of the revolver on the ground that it was obtained by means of an illegal search and seizure.

In the absence of an appropriate objection in the trial court, it cannot be successfully contended on appeal that it was error to permit the introduction of evidence because it was illegally obtained. In the face of a proper objection the prosecution might have been able to offer additional evidence on the issue raised by the objection. (See People v. Ibarra, 60 Cal.2d 460, 462--463, 34 Cal.Rptr. 863, 386 P.2d 487.)

The objection as expressed by defendant's counsel did not specify the ground that the evidence was illegally obtained. The governing law is embodied in section 353 of the Evidence Code in the following language: 'A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; * * *.' A portion of the comment of the Legislative Committee is as follows: 'Subdivision (a) * * * codifies...