People v. Kerwin

• Decision Date: 10 February 1972
• Docket Number: Cr. 19964
• Citation: People v. Kerwin, 100 Cal.Rptr. 240, 23 Cal.App.3d 466 (Cal. App. 1972)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Brian Raymond KERWIN, Defendant and Respondent.

Page 240

100 Cal.Rptr. 240

23 Cal.App.3d 466

The PEOPLE of the State of California, Plaintiff and Appellant, v. Brian Raymond KERWIN, Defendant and Respondent.

Cr. 19964.

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

Feb. 10, 1972.

As Modified on Denial of Rehearing March 1, 1972.

Hearing Denied April 6, 1972.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Dist. Atty., Harry Wood, Head, Appellate Div., Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.

Jay J. Tanenbaum, Beverly Hills, for defendant and respondent.

KAUS, Presiding Justice.

Motion to dismiss an appeal by the People from an order setting aside an information charging the defendant with a violation of section 11530 of the Health and Safety Code (possession of marijuana).

At the motion under section 995 of the Penal Code, which was granted on March 1, 1971, defendant was represented by private counsel. The People's notice of appeal was filed on March 8. For unknown reasons the county clerk notified the Los Angeles County Public Defender of the People's appeal. The record was filed in this court on April 14, 1971. The outside covers of both the reporter's and the clerk's transcript indicate that the public defender represents defendant. An inspection of the inside covers, however, discloses that defendant's counsel was not the public defender.

On May 17 a Deputy Attorney General obtained a thirty day extension of time to file the People's opening brief. No brief was filed within the extended time, but on July 23, 1971, after a notice under rule 17(a) of the California Rules of Court had been given by the clerk of this court, an opening brief was filed, both the Attorney General and the district attorney appearing as counsel. A copy of the brief was served on the public defender. A letter in our file indicates that this error was provoked by the erroneous information on the outside cover of the reporter's transcript. On August 24 and again on September 23 the public defender obtained thirty day extensions of time to file the respondent's brief. Apparently when the second extension was about to run out, the mistake was discovered and counsel for defendant was, on October 21, then notified by the district attorney, either directly or through the office of our clerk, that an appeal was pending. Counsel's reaction was to file a motion to dismiss the appeal.

DISCUSSION

The main burden of the motion to dismiss is that because of the county clerk's error, compounded perhaps by service of the People's brief on the public defender, any trial of defendant which may result from a reversal on appeal, will not be speedy enough to satisfy the requirements of the speedy trial provision of the Sixth Amendment to the United States Constitution, as applicable to this state through the Fourteenth Amendment (Klopfer v. North Carolina, 386 U.S. 213, 223-226, 87 S.Ct. 988, 18 L.Ed.2d 1) and the first clause of section 13 of article I of our State Constitution. More generally it is claimed that any future trial will, because of inexcusable delay, deprive defendant of due process of law. In this connection defendant points out that he was not notified of the pendency of an appeal until 227 days after the filing of the notice of appeal by the People.

In their brief opposing the motion to dismiss the People claim that in the absence of special circumstances, such as where it appears that the People have taken a frivolous appeal or have wilfully delayed the orderly process of an appeal, delay at the appellate level does not deprive an accused of his right to a speedy trial.

Both parties see the problem presented by this case in clearer shades of black and white than do we. Thus, while it is true that defendant was not advised of the pendency of an appeal until more than 200 days had passed after he should have been, the fact is that this delay did not slow down the appellate process by that many days. The People, in the absence of a most unusual order shortening time, would have had 30 days after the filing of the record within which to file their opening brief (Cal. Rules of Court 37(a)) and defendant would have had 30 days in which to reply. Thus, even without extensions of time, the case would not have been briefed before June 13. The wasted time thus boils down to considerably less than 200 days.

The People's position, as put forward in their points and authorities in opposition to the motion to dismiss, is equally untenable. Before examining it, it must be deemed significant that the People evidently concede that in the ordinary case a deprivation of a constitutional right to a speedy trial aborts the prosecution, whether or not prejudice is shown once it is established that there has been unreasonable delay. (Harris v. Municipal Court, 209 Cal. 55, 64, 285 P. 699; Rost v. Municipal Court, 184 Cal.App.2d 507, 511, 7 Cal.Rptr. 869; cf. Jones v. Superior Court, 3 Cal.3d 734, 740--741, 91 Cal.Rptr. 578, 478 P.2d 10.) The People cannot and do not seriously contend that here the delay has been reasonable. While they point out it was not the prosecution, but the county clerk's office which was responsible, that is not quite true in view of the People's service of their brief on the public defender and, in any event, from defendant's point of view the clerk represents the state as much as does the prosecution. (People v. Serrato, 238 Cal.App.2d 112, 118--119, 47 Cal.Rptr. 543.)

Further the few decided cases dealing with appellate delay do not justify the broad sweep of the People's argument on the law. The only Supreme Court case cited is People v. Sylvia, 54 Cal.2d 115, 125, 4 Cal.Rptr. 509, 516, 351 P.2d 781, 788 where, after finding that the defendant's trial had been free of reversible error, the court adverts to certain irregularities which resulted in an 'overly long period of time . . . before the defendant received an adequate hearing on appeal.' However, explained the court, the delay became immaterial when it was established that the appeal was without merit, since during the delay defendant had been serving part of his sentence. This certainly does not dispose of the problem in the event that the appeal results in a reversal and an unduly delayed retrial.

That actually was the situation presented by People v. Serrato, Supra. There, because of sloppy proceedings in the county clerk's office, the preparation of a proper record was delayed for a long time until, finally, a proper record could no longer be filed because the reporter had destroyed his notes. The court held that on that state of the record the judgment had to be reversed and a retrial ordered. However, the question whether such a retrial would deprive the defendant of his constitutional right to a speedy trial was not raised or discussed. In any event, there is a difference between a retrial after a presumptively proper determination of guilt at a first trial and the case at bar where no trial has ever been had.

Other cases cited by the People are no more in point than Sylvia. People v. James, 179 Cal.App.2d 216, 221, 3 Cal.Rptr. 648; People v. Patterson, 172 Cal.App.2d 334, 336, 342 P.2d 272 and People v. Harrison, 129 Cal.App.2d 197, 203, 276 P.2d 188 are on all fours with Sylvia in that each case represents an unmeritorious appeal from a judgment of conviction. People v. Superior Court (Lewis) 5 Cal.App.3d 698, 85 Cal.Rptr. 327 has to do with delay between a narcotics offense and the filing of a complaint. The delay was held to be reasonable and no prejudice was shown. In any event, we now know that the Sixth Amendment only affects persons who have become 'accused.' (United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (filed December 20, 1971).) ¹

People v. Superior Court (Mahle) 3 Cal.App.3d 476, 487--488, 83 Cal.Rptr. 771, deals with delay caused by the People's petition for a writ of mandate following a suppression order under section 1538.5 of the Penal Code. No unnecessary delay in pursuing this remedy on the part of People was involved and, accordingly, good cause was shown.

People v. Snowdy, 237 Cal.App.2d 677, 683--684, 47 Cal.Rptr. 83 is procedurally very similar to this case in that it involves a People's appeal from an order setting aside an information. There was an undue delay in preparing the record. After holding that the information should not have been set aside, the court then proceeds to deal with the defendant's contention that the delay in perfecting the appeal had deprived him of his right to a speedy trial. It found no merit in the claim, since the defendant had known about the pendency of the appeal and could have forced compliance with the time limits pertaining to the preparation of a record. The court's reliance on the defendant's knowledge in Snowdy hardly helps the People in this case where lack of knowledge is conceded.

The People's assertion that time spent at the appellate level is 'time out' as far as the right to a speedy trial is concerned, absent prejudice or purposeful delay, is thus not supported by the authorities. The most that they stand for are propositions to the effect (a) that a defendant has suffered no prejudice if a delayed appeal results in an affirmance; and (b) that necessary delay caused by the prosecution of a People's petition for a writ of mandate after a suppression order is not unreasonable.

These precedents are of no help here because defendant has never been tried and because the People cannot advance a reasonable explanation for the delay in prosecuting their appeal. No one would question defendant's right to a dismissal under section 1382, subd. 2 of the Penal Code if the People had unreasonably delayed the trial beyond the sixty day period established thereby. Yet the net effect of the delay, in the procedural posture of this prosecution, is precisely the same as if the delay had taken place at the trial level. The only difference is...