People v. Hernandez

Decision Date10 January 1985
Docket NumberCr. A
Citation212 Cal.Rptr. 563,166 Cal.App.3d Supp. 1
CourtCalifornia Superior Court
Parties166 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Appellant, v. Luis HERNANDEZ, Defendant and Respondent. 21035. Appellate Department, Superior Court, Los Angeles County, California

Ira Reiner, Dist. Atty., Donald J. Kaplan and Maurice H. Oppenheim, Deputy Dist. Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Ralph Rios and John Hamilton Scott, Deputy Public Defenders, for defendant and respondent.

SHABO, Judge.

The People appeal from an order of the trial court dismissing the charge of violating Vehicle Code section 23102, subdivision (a) (driving under the influence of alcohol) and adding a charge of violating Vehicle Code section 23103 (reckless driving) as well as from the judgment based on that order. They contend that the court improperly amended the complaint, over the People's objection, to allow defendant to plead nolo contendere to a lesser crime than the one with which he was originally charged. We agree and reverse the order and judgment. We also explain why we denied respondent's motion to dismiss the appeal.

The record reveals that on September 24, 1981, a complaint was filed against defendant in Rio Hondo Municipal Court charging him with one count of violating former section 23102, subdivision (a) (driving under the influence of alcohol) of the Vehicle Code. On March 25, 1982, defendant appeared in court with counsel and the following took place:

"THE COURT: On the trial calendar, Luis Hernandez.

"Mr. Rios: Ready for trial.

"The Court: Will your client plead to reckless driving?

"Mr. Rios: Yes.

"The Court: Mr. Hernandez, I am willing on the court's own motion to reduce this offense to reckless driving only because you have no prior record and only because the damage has been paid in this accident in this case. I am doing this over the objection of the people. I don't normally do that, but in this case I feel that you have a lot of things going for you. That does not excuse your conduct on this particular date.

"Also, if the court calendar was not so crowded I would not be so inclined to do that."

The deputy district attorney prosecuting the matter objected to the proposed disposition on the ground that the court was appropriating the role of the prosecuting agency by determining the nature of the charge to be filed and was thus violating the doctrine of separation of powers. The court proceeded to amend the complaint by interlineation, adding the reckless driving charge. 1 Defendant pleaded no contest to the charge of reckless driving and was placed on probation on stated terms and conditions.

1. The Delay in the Appellate Process Did Not Justify Dismissal of the Appeal.

Relying primarily upon People v. Kerwin (1972) 23 Cal.App.3d 466, 100 Cal.Rptr. 240 and our decisions in People v. Ruhl (1976) 63 Cal.App.3d Supp. 6, 134 Cal.Rptr. 62 and People v. Bighinatti (1975) 55 Cal.App.3d Supp. 5, 127 Cal.Rptr. 310, respondent moved this court to dismiss the instant appeal. Respondent contended that his right to due process of law and to a speedy trial had been abridged by reason of a 14-month delay in processing the instant appeal. 2 By a separate order we denied his motion. At his request, made on petition for rehearing, we now explain our reasons for doing so.

Although irregularities resulting in delay in the appellate process may, when meaningful appellate review is precluded thereby, constitute a violation of due process of law (see People v. Sylvia (1960) 54 Cal.2d 115, 125, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Ruhl, supra, 63 Cal.App.3d Supp. at p. 8, 134 Cal.Rptr. 62), a defendant on appeal is not entitled to a reversal of the judgment of conviction by reason of the delay if the defendant secures an adequate hearing of the appeal. (People v. Sylvia, supra.) In the case at bench, the delay in the appellate process of which respondent complains has not defeated his right to an adequate hearing on appeal; thus, respondent has not established that the delay in any way prejudiced him on appellate review. Indeed he states: "It is not respondent's position before this court that the delay in this case has prevented adequate review on appeal. It is rather respondent's position that the inordinate and unjustified delay in this case has violated his statutory and constitutional right to a speedy trial." (Emphasis in original.) In essence respondent argues that the delay in the appellate process will result in respondent's excessively delayed trial, thereby depriving him of his Sixth Amendment right to a speedy trial as well as his statutory right under Penal Code section 1382.

Because of respondent's posture in reference to his motion to dismiss, we need not decide whether the right to a speedy appeal emanates from the right to a speedy trial or from the constitutional guarantee of due process of law. We observe, however, that the vast majority of courts generally have rejected speedy trial as the constitutional basis for the right to a speedy appeal; instead they have recognized due process as the right's foundation--at least in postjudgment appeals by the defendant. (See, e.g., People v. Sylvia, supra; Commonwealth v. Pounds (1980) 490 Pa. 621, 417 A.2d 597; Cunningham v. State (Tex.Crim.App.1972) 484 S.W.2d 906; Zanders v. State (Tex.Crim.App.1974) 515 S.W.2d 907; Colunga v. State (Tex.Crim.App.1975) 527 S.W.2d 285; State v. Lagerquist (1970) 254 S.C. 501, 176 S.E.2d 141; State v. Johnson (La.1978) 363 So.2d 458; State v. Crabtree (Mo.App.1981) 625 S.W.2d 670; State ex rel. Mastrian v. Tahash (1967) 277 Minn. 309, 152 N.W.2d 786; State v. Lane (La.1974) 302 So.2d 880; State v. Cooper (1977) 52 Ohio St.2d 163, 370 N.E.2d 725; United States v. Alston (D.C.Cir.1980) 412 A.2d 351; Doescher v. Estelle (N.D.Tex.1978) 454 F.Supp. 943; United States v. Cifarelli (2d Cir.1968) 401 F.2d 512; Petition of Williams (1979) 378 Mass. 623, 393 N.E.2d 353; Walker v. State (1981) 247 Ga. 484, 277 S.E.2d 242; Gajdos v. State (Ind.1984) 462 N.E.2d 1017; State v. Chapple (1983) 135 Ariz. 281, 660 P.2d 1208; Roberson v. State of Connecticut (2d Cir.1974) 501 F.2d 305, 310 (conc. and dis. opn of Mansfield, J.); State v. Cooper, supra, 370 N.E.2d 725; see, also, Commonwealth v. Dominico (1974) 1 Mass.App. 693, 306 N.E.2d 835; Commonwealth v. Swenson (1975) 368 Mass. 268, 331 N.E.2d 893; Dozie v. Cady (7th Cir.1970) 430 F.2d 637; Layne v. Gunter (1st Cir.1977) 559 F.2d 850; Smith v. Kansas (10th Cir.1966) 356 F.2d 654; Codispoti v. Howard (3d Cir.1978) 589 F.2d 135; Way v. Crouse (10th Cir.1970) 421 F.2d 145; but see People of the Territory of Guam v. Olsen (D.Guam App.Div.1978) 462 F.Supp. 608; cf. Reese v. State (Tex.Crim.App.1972) 481 S.W.2d 841 [no basis stated].)

In assessing the constitutional claim on due process grounds some courts have applied the factors set forth in Barker v. Wingo (1972) 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101; (see, e.g., State v. Files (1981) 183 Conn. 586, 441 A.2d 27; Petition of Williams, supra, 393 N.E.2d at 355; Doescher v. Estelle, supra, 454 F.Supp. at 947; State v. Crabtree, supra, 625 S.W.2d at 674; Rheuark v. Shaw (5th Cir.1980) 628 F.2d 297, 303; but see United States v. Alston, supra, 412 A.2d at 357-359); an apparent minority of courts have focused essentially on the length of unjustified delay (People of the Territory of Guam v. Olsen, supra, 462 F.Supp. 608; see, also, People v. Kerwin, supra, 23 Cal.App.3d 466, 100 Cal.Rptr. 240; cf. State v. Files, supra, 441 A.2d 27.). A majority of other jurisdictions, including California, seem to balance the factors of prejudice against justification for the delay. (See, e.g., People v. Sylvia, supra, 54 Cal.2d 115, 4 Cal.Rptr. 509, 351 P.2d 781; People v. Missouri (Mich.App.1980) 299 N.W.2d 346, 352-353; State v. Lagerquist, supra, 176 S.E.2d at 143; Gajdos v. State, supra, 462 N.E.2d at 1023; United States v. Alston, supra, 412 A.2d 351; State v. Chapple, supra, 660 P.2d at 1225-1226; Dozie v. Cady, supra, 430 F.2d at 638; see, also, Commonwealth v. Swenson, supra, 331 N.E.2d at 901; Codispoti v. Howard, supra, 589 F.2d at 142); these courts generally have considered prejudice in terms of the delay's impact upon the effectiveness and adequacy of appellate review. (See, e.g., People v. Sylvia, supra; Commonwealth v. Dominico, supra, 306 N.E.2d at 855; Way v. Crouse, supra, 421 F.2d at 147) and have determined that the remedy for undue delay is review itself. (See, e.g., People v. Sylvia, supra; People v. Missouri, supra, 299 N.W.2d at 353; Commonwealth v. Dominico, supra, 306 N.E.2d at 855; see, also, State v. Crabtree, supra, 625 S.W.2d at 675; Layne v. Gunter, supra, 559 F.2d at 852; Reese v. State, supra, 481 S.W.2d at 843; Way v. Crouse, supra, 421 F.2d at 147.)

Because of respondent's contention and the procedural posture of the case as a People's appeal, whose successful outcome will result in a probable future trial of respondent, an analysis grounded upon the right to a speedy trial is compelled. 3 (See People v. Kerwin, supra; State v. Files, supra, 441 A.2d 27; Note, The Sixth Amendment Speedy Trial Guarantee: Delay Resulting From Interlocutory Appeals (1980) 60 B.U.L.Rev. 664.) In California, the resolution of a constitutionally based claim of denial of a speedy trial requires that the court weigh the justification for delay against a showing of actual prejudice. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, 149 Cal.Rptr. 597, 585 P.2d 219; People v. Bradford (1976) 17 Cal.3d 8, 18-19, 130 Cal.Rptr. 129, 549 P.2d 1225; Jones v. Superior Court (1970) 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10; Overby v. Municipal Court (1981) 121 Cal.App.3d 377, 383, 385-387, 175 Cal.Rptr. 352.) In this connection, it has been suggested by the author of the Boston University Law Review note that delay weighs against the prosecution; however, the author emphasizes that in...

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