People v. Escarcega
| Decision Date | 14 October 1986 |
| Citation | 230 Cal.Rptr. 638,186 Cal.App.3d 379 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Raul ESCARCEGA, Defendant and Appellant. B004487. |
| Court | California Court of Appeals Court of Appeals |
John K. Van de Kamp, Atty. Gen., William R. Weisman, Supervising Deputy Atty. Gen., and John A. O'Sullivan, Deputy Atty. Gen., for plaintiff and respondent.
Defendant Raul Escarcega appeals from a judgment of conviction following a jury trial of violating PENAL CODE SECTIONS 2091 (kidnapping for robbery) and 211 robbery. 2
Defendant asserts that: (1) he was denied his right to a speedy trial under section 1382; and (2) he was denied his right to effective assistance of counsel (see People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144).
From our review of the record we agree that defendant was denied his statutory right to a speedy trial but find that he was
not prejudiced. We also conclude that defendant waived any claim of denial of effective assistance of counsel.
On April 5, 1983, an information was filed charging defendant and codefendant David Miranda Salazar with the violations of sections 209 and 211. It was further alleged that in the commission of each of these offenses a principal was armed with a handgun and that defendant personally used a handgun. Attorney Marvin Part was appointed to represent defendant. Defendant pleaded not guilty to both charges and denied the "armed" and "use" allegations. Trial was set for May 18, 1983.
On May 9, 1983, the information was amended to allege that defendant had suffered three prior felony convictions. On May 18, 1983, defendant was arraigned on the priors and denied them. When the matter was called for trial that date, Part announced that he was not ready, because he was engaged in another case and had been ordered to keep himself ready for that trial, and also he had not yet prepared defendant's case. He asked the court to appoint an investigator to assist him in that preparation. Part further informed the court that he had another case set for trial in Norwalk on June 15, 1983, and represented that Escarcega would waive "for any period of time." Trial was continued to May 31, 1983.
On May 31, 1983, the People announced ready. Part, however, represented that he was still trailing in one case and had another set to try after that. Trial was continued to August 15, 1983, and defendant waived time until 45 days thereafter.
On August 15, 1983, trial was continued to October 31, 1983, to accommodate attorney vacation problems. Defendant waived time to October 31.
On October 31, 1983, Penelope Watson, attorney for codefendant Miranda, appeared on Part's behalf. She stated that Part was not in court that day, because he was making an appearance in another case in Arizona, and upon Part's return he was scheduled to conduct a one-week trial in still another case. Defendant refused to be represented by Watson and for the first time objected to any further continuance. On its own motion the court trailed the matter to the following day.
On November 1, 1983, Part appeared and announced that he was not ready, because he was in the fifth day of trial the "Lawrence" case. He represented, however, that he would be ready by November 15, 1983, "at the very latest." When asked if he would waive his right to a speedy trial, defendant replied "no".
The court told defendant that one option would be to relieve Part and appoint another attorney but rejected this option on the basis that such substitution would probably entail a further continuance of about two months to allow new counsel to prepare for trial. Instead, the court found good cause to continue the trial to November 14th and ordered both defense counsel "not to become engaged in or announce ready on any matters that would interfere with this date."
On November 14, 1983, counsel for all parties announced ready, except Part, who stated that he was still engaged in the "Lawrence" case but would be through "by the 28th of November". Defendant again refused to waive his right to a speedy trial. The court found good cause to continue the matter to November 28, 1983. When the case was called for trial on November 28, Part appeared. Defendant requested that attorney Antonio C. Sandoval, who was privately retained, be substituted in Part's place. Defendant's request was granted. Sandoval declared he was ready, but the court trailed the matter until November 30, 1983, without objection.
On November 30, 1983, trial was trailed to December 1, 1983, and again from that date to December 5, 1983, from December 5 to December 6, 1983, and finally from December 6 to December 7, 1983.
On December 7, 1983, prior to commencement of trial, the court conducted a hearing concerning various pretrial motions, including defendant's motions under sections 995 and 1538.5, which were filed without supporting memoranda of points and authorities. Sandoval explained that the points Also on that date the prosecution filed a memorandum of points and authorities in anticipation of a motion by Sandoval to strike or limit the use of an uncharged prior conviction in 1981 for kidnap for the purpose of rape. The prosecutor indicated that he intended to introduce evidence in his case-in-chief of such prior. Sandoval did not in fact make such a motion and made no argument against the admission of such evidence. After noting the absence of such argument, codefendant Miranda moved to sever his trial from defendant's. Sandoval did not oppose the severance. Instead, he handed a subpoena prepared by him to compel Miranda to be a witness for defendant. The court questioned the purpose of the subpoena advising Sandoval that Miranda had a Fifth Amendment right not to be a witness. Sandoval responded that he was going to talk to him and see if he was available. He also stated that Miranda would have to talk to him "as an adverse witness to my client, even if he vindicates [sic ] my client's rights."
and authorities were not finished and then admitted that he had not served these motions on other counsel. He presented no evidence in support of the 1538.5 motion. The court denied both motions. The court also denied Sandoval's oral motion to dismiss or limit the alleged prior convictions, which defendant had denied, but granted Sandoval's motion for a separate trial on those priors.
The court then called counsel into chambers and conducted an inquiry based on the court's concern that Sandoval might be too inexperienced to try a serious felony of this nature. Sandoval stated that he had tried only four criminal cases, including only one felony case, in his two-to-three years as an attorney. He admitted that he had not been prepared and was not making all the proper procedural motions. Sandoval, however, insisted that he wanted to try the case, but would inform his client of the court's inquiry and let his client make the decision.
Upon resuming the bench the court permitted Sandoval to confer privately with his client and then informed defendant, on the record, that Sandoval was "probably a very good lawyer in other areas of the law" but the court had "serious doubts as to whether or not he is able to take on a case of the complexity and seriousness of yours." The court then informed defendant that he could either keep his present attorney, or if he wanted, the court would appoint him another. Defendant stated, on two separate occasions, that he wanted to proceed with Sandoval.
The next morning the court again inquired whether defendant wanted to proceed with Sandoval and admonished him that "if in fact you have been convicted you will not be able to claim ineffective counsel at the time of appeal." Defendant answered in the affirmative when asked by the court if he understood this. He also twice answered in the affirmative when the court asked if knowing this to be so, defendant wanted to proceed with his counsel, Sandoval. The court then granted the codefendant's motion to sever.
Defendant then proceeded to trial with Sandoval as his counsel. The jury subsequently found defendant guilty as charged with violating sections 209 and 211 and found the three alleged prior convictions and the "use" allegation with regard to the 209 offense to be true.
It is clear from our review of the record that defendant expressly or impliedly agreed to all postponements of his trial until October 31, 1983, when, for the first time, he objected to any further delay. Defendant was therefore required to be brought to trial within 10 days thereafter, i.e. November 10, unless he consented to subsequent delays or unless the court found good cause to continue the matter beyond that time period. ( § 1382, subd. 2.)
Defendant specifically objected to the postponements from October 31, 1983 to November 1, 1983, 3 and from November 1 1983 to November 14, 1983, and from November 14, 1983 to November 28, 1983. Although the court was within its discretion to postpone trial until November 10, 1983, any delay thereafter could only be justified upon a showing that defendant consented to such delay or that good cause existed for such delay.
On the record before us we find that there was no justification for the delay from November 10 to November 28, 1983, about two and one-half weeks. The sole reason for such delay was the congested calendar of Part, defendant's appointed counsel. In the absence of "extraordinary circumstances" such explanation for delay cannot constitute a sufficient excuse.
It is established that "[a] defendant's right to a speedy trial may be denied simply by the failure of the state to provide enough ... public defenders...
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Greenberger v. Superior Court
...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 J......
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People v. Superior Court (Alexander), B085837
...constitute good cause to continue a trial beyond the statutory time period over a defendant's objection. (People v. Escarcega (1986) 186 Cal.App.3d 379, 386-387, 230 Cal.Rptr. 638.) Relying upon People v. Johnson, Escarcega criticized the trial court because it had failed to inquire whether......
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People v. Gonzalez
...trial and his right to meaningful review of the injunction, a choice he cannot be compelled to make. (Cf. People v. Escarcega (1986) 186 Cal.App.3d 379, 386, 230 Cal.Rptr. 638 [defendant cannot be made to choose between his right to representation and right to speedy trial].) Second, this a......
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People v. Sutton, No. S166402 (Cal. 4/5/2010)
...constitute good cause to delay one defendant's trial beyond the time period set forth in . . . section 1382 . . . ." (Escarcega, supra, 186 Cal.App.3d 379, 386, fn. 4; see also Arroyo v. Superior Court (2004) 119 Cal.App.4th 460, As we have explained above, however, past decisions of this c......