People v. Hathaway

• Decision Date: 02 August 1972
• Docket Number: Cr. 21449
• Citation: 103 Cal.Rptr. 638,27 Cal.App.3d 586
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Ben HATHAWAY, Defendant and Respondent.

Page 638

103 Cal.Rptr. 638

27 Cal.App.3d 586

The PEOPLE of the State of California, Plaintiff and Appellant, v. Ben HATHAWAY, Defendant and Respondent.

Cr. 21449.

Court of Appeal, Second District, Division 5, California.

Aug. 2, 1972.

Rehearing Denied Aug. 23, 1972.

Hearing Denied Oct. 18, 1972.

David D. Minier, Dist. Atty., Zel Canter and Patrick J. McKinley, Deputy Dist. Attys., for plaintiff and appellant.

Brelsford, McMahon & Butcher, and Patrick L. McMahon, Santa Barbara, for defendant and respondent.

KAUS, Presiding Justice.

On November 2, 1971, the District Attorney of Santa Barbara County filed a 22 count indictment in the superior court, charging defendant with eleven violations of section 72 of the Penal Code and eleven violations of section 14107 of the Welfare and Institutions Code. Defendant demurred and filed a motion to quash the indictment. After the matter was submitted for a ruling, the district attorney filed an amended indictment, which differed from the original only with respect to the specificity with which it described the offenses charged. Defendant demurred to the amended indictment and the matter was resubmitted. The demurrer was sustained with leave to amend. The People appeal.

I.

Before reaching the merits, we must direct our attention to certain procedural problems encountered by the People in getting here. Although a motion to dismiss the appeal has already been denied by us, we did expressly preserve defendant's point that the delay caused by the proceedings which we are about to relate will necessarily deprive him of his right to a speedy trial. (Cf. People v. Kerwin, 23 Cal.App.3d 466, 100 Cal.Rptr. 240.)

In the case at bar the trial court filed its opinion and order sustaining the demurrer to the amended indictment on January 17, 1972. The People were given ten days within which to file a second amended indictment. Apparently stung to the quick by that ruling, they did not amend, but noticed an appeal from the January 17 order exactly one week later, on January 24, 1972. The record was filed in this court on March 1 and the People's opening brief on March 14.

On April 7 defendant filed a motion to dismiss the appeal on the self-evident ground that no appealable judgment was in existence. The same day, April 7, we ordered the motion to be heard on May 18, together with the appeal on its merits. Defendant was given until April 26 to file his brief, which deadline was met.

In the meanwhile the People unsuccessfully moved the trial court to enter a judgment nunc pro tunc. The motion was denied on May 4, the trial court being of the opinion that in view of the pendency of the appeal, it had no jurisdiction to grant it.

The motion to dismiss the appeal and the merits of the appeal were both argued before us on May 18, as previously ordered. With respect to the motion to dismiss we filed a written order on May 19. It is quoted in the footnote. ¹ Responding to our suggestion on how to get this matter back on the track, a judgment of dismissal was filed on June 2. Pursuant to the May 19 order, the motion to dismiss was therefore denied and the appeal submitted on the merits.

The effect of all this was that an appeal from a judgment which could not have been entered before January 27, was submitted to us on the merits in just over four months. Nevertheless, relying on our opinion in People v. Kerwin, 23 Cal.App.3d 466, 100 Cal.Rptr. 240, defendant claims that no point would be served in deciding those merits, because in the event of a reversal he will necessarily be deprived of his right to a speedy trial.

Defendant misunderstands what we were trying to say in Kerwin. There a comedy of errors committed by various functionaries of the state had irretrievably delayed the processing of a People's appeal through this court by ninety days. We held, by analogy to section 1382, subdivision 2 of the Penal Code, that the inexcusable delay of more than sixty days would deprive defendant of his right to a speedy trial, in the event the appeal resulted in a reversal. We therefore did not decide the merits.

Nothing of the kind has happened here. The record on the then nonexisting appeal was promptly filed, as was the People's opening brief. The only time which could conceivably be characterized as wasted is the twenty-two day period which elapsed between the filing of the People's opening brief and April 7, during which time the defense may reasonably have devoted its energies to getting the appeal dismissed, rather than replying on the merits. Our order of April 7, which in effect telescoped the motion to dismiss into the appeal--or perhaps vice versa--prevented any further 'dead time.'

It is, of course, apparent that the avoidance of more extensive delay was due to this court's April 7 and May 19 orders. This troubles our conscience not one bit. The defendant has a right to a speedy trial, but no right to judicial indifference to its denial. ²

II.

Turning to the merits, it is easier to formulate the issues by listing defendant's grievances with respect to the indictment, than by enumerating the People's submissions of reasons why there is nothing wrong with it.

Defendant complains:

A. Section 14107 of the Welfare and Institutions Code was, with respect to offenses covered by section 14107, a pro tanto repeal of section 72 of the Penal Code.

B. The pleading of each count alleging a violation of section 14107 was duplicitous, in that it alleged two separate offenses; further, the prosecution was required to elect between the two offenses embraced in each count charging a violation of section 14107.

C. All 22 counts of the indictment must fall against defendant's claim that they do not give him notice of the exact offenses with which he is charged. (Pen.Code § 952.)

A. Pro Tanto Repeal

The odd-numbered counts of the amended indictment charge violations of section 72 of the Penal Code. Except for the alleged date of the offense and defendant's billing number involved, the language of each of these counts is identical. ³ Each of the even-numbered counts charges a violation of section 14107 of the Welfare and Institutions Code with respect to the same transaction referred to in the preceding odd-numbered count. ⁴ The trial court's memorandum opinion contains the following passage with respect to the claim that section 14107 of the Welfare and Institutions Code was a pro tanto repeal of section 72 of the Penal Code: 'Ground I of the demurrer, that the Counts alleging a violation of Penal Code Section 72 do not state facts sufficient to constitute a public offense, is sustained. Section 14107 of the Welfare and Institutions Code is the statute specifically dealing with the offenses charged, and under the cases cited by defendant, the People cannot charge the same facts under the broader Penal Code Section. If only the violations of Penal Code Section 72 were alleged, a conviction under that section would be reversed. Here the amended indictment charges a violation of both sections. Since the appropriate section is 14107 of the Welfare and Institutions Code, and since causes of action are stated under the section, no cause of action can be stated for violating Penal Code Section 72.' The line of cases relied on by the trial court and again relied on by the defendant on appeal is well known. It was most recently applied by our Supreme Court in People v. Gilbert, 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580. The rule was there quoted as follows: 'As we stated in In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593, 594: 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.' . . .' (1 Cal.3d at p. 479, 82 Cal.Rptr. at p. 727, 462 P.2d at p. 583.)

We assume that section 14107, quoted in the footnote ⁵ should be held to be a pro tanto repeal of section 72 of the Penal Code, also quoted below, ⁶ were it not for the last sentence of section 14107: 'The enforcement remedies provided under this section are not exclusive and shall not preclude the use of any other criminal or civil remedy.'

Defendant urges that the People's reliance on a similar proviso was rejected in People v. Gilbert, Supra, 1 Cal.3d 475, 481 footnote 5, 82 Cal.Rptr. 724, 462 P.2d 580. That case held that the defendant could not be prosecuted under the general theft statute for fraud in failing to notify the authorities of a change in her eligibility to receive aid from the county, since section 11482 of the Welfare and Institutions Code was a special statute dealing with such conduct. This was so, in spite of the fact that section 11485 provides in part: 'The enforcement remedies provided the district attorney under this article (sections 11475--11488) shall not preclude the use of any other remedy which he has under the law to enforce this article.' The court held that section 11482 was not one of the many sections in 'this article' which referred to the district attorney, and the provision quoted applied only to those sections which do name the district attorney. (Id. p. 481, fn. 5, 82 Cal.Rptr. 724, 462 P.2d 580.)

Section 14107 of the Welfare and Institutions Code, however, does not so limit its proviso but rather refers broadly to 'any other criminal or civil remedy.' Section 72 of the Penal Code clearly falls within this broad classification.

Furthermore, it should be noted that section 14107 was enacted by the Legislature after the decision in People v. Gilbert, Supra. It seems very probable that the wording of the proviso to section 14107 was a response to the Gilbert decision's statement that '(i)f the Legislature wanted to retain the theft penalty in welfare fraud cases, it would have explicitly so stated.' (People v. Gilbert, Supra, at p. 481, fn. 5, 82 Cal.Rptr. at...