People v. McFarland

• Decision Date: 19 November 1962
• Docket Number: Cr. 1827
• Citation: 26 Cal.Rptr. 596,209 Cal.App.2d 772
• Parties: The PEOPLE, Plaintiff and Respondent, v. Walter Emmett McFARLAND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 596

26 Cal.Rptr. 596

209 Cal.App.2d 772

The PEOPLE, Plaintiff and Respondent, v. Walter Emmett McFARLAND, Defendant and Appellant.

Cr. 1827.

District Court of Appeal, Fourth District, California.

Nov. 19, 1962.

As Modified on Denial of Rehearing Dec. 14, 1962.

[209 Cal.App.2d 774] Walter Emmett McFarland, defendant and appellant, in pro. per.

Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

This is an appeal from a judgment after conviction of the offense of burglary in the second degree, i. e., a violation of Section 459 of the Penal Code, upon the following stated grounds:

'1. That the Court erred in denying motion to dismiss against defendant.

'2. That the Court exceeded its jurisdiction in proceeding against defendant after the statutory time provided by law.

'3. The evidence is insufficient to sustain the judgment of conviction of burglary.'

RE MOTION TO DISMISS AND ALLEGED LACK OF JURISDICTION

On these issues, of primary concern are the provisions of Penal Code, section 681a, declaring an early trial policy, Section 1050 which gives criminal cases precedence over civil cases, and Section 1382 prescribing a 60 day trial date limitation.

The instant action arose out of an information filed on December 8, 1960, charging the defendant McFarland, who is the appellant herein, and a co-defendant named Wallace, with burglarizing a church in Encinitas, California; with an attempt to commit another burglary; and with prior convictions. They pleaded 'not guilty' to the burglary charges, and admitted the prior convictions. The trial on the issues raised by the 'not guilty' pleas was held in May, 1961, following two continuances granted at the request of the defendant Wallace and consented to by the defendant McFarland; resulted in a verdict of acquittal of the attempt charge; and culminated in an order declaring a mis-trial as to the burglary charge. Thereupon, the case was set for retrial on June 21st; on June 16th was reset for August 4th, upon the granting of a motion for continuance, the record not identifying the moving party, and appellant waived the 60 day limitation; on August 3rd was reset for October 2nd at the request of defendant Wallace, and appellant again waived the 60 day limitation; on October 2nd was continued for one week at the request of the defendant Wallace, whose attorney was engaged in the trial of a civil action involving several parties represented by as many counsel, and the court was advised that Wallace might change his plea from 'not guilty' to 'guilty', in which event the district The rule governing a decision in this case is that expressed in In re Lopez, 39 Cal.2d 118, 120, 245 P.2d 1, 2, where a trial was continued to a date beyond the 60 day period with the defendant's consent, and then was continued for an additional 21 days without his consent and over his objection, and the court said:

attorney would move for a dismissal as against appellant, because he then was serving a term of imprisonment in a state prison on another charge, but appellant stated that he would 'not waive the sixty days again'; and on October 4th, two days later, was continued to November 10th, at the request of the district attorney, when it appeared that the defendant Wallace did not intend to change his plea from 'not guilty' to 'guilty' and upon a showing that the district attorney, in reliance upon the expected change of plea had not subpoenaed the People's witnesses, some of whom were in the northern part of the state, and the appellant, through his attorney, objected to the continuance. On November 9th appellant moved for a dismissal upon the ground that he, 'has not been timely retried within the period prescribed by Section [209 Cal.App.2d 776] 1382 of the Penal Code of the State of California.' At the hearing on this motion the aforesaid facts were brought to the attention of the court; it also appeared that the attorney for Wallace did not finish with the trial of the civil case in which he was engaged on October 4th until October 19th and that he thereupon immediately commenced the trial of a previously set criminal case which had just concluded. At all times following the conclusion of the first trial the defendant had been imprisoned at the state prison at Chino, California, for a previously convicted offense, and was brought to the trial court on each of the foregoing occasions. No issue was raised concerning the unavailability of any witnesses on his behalf because of the delay.

'The defendant was not entitled to go to trial as of right on the day to which he last consented if good cause appeared for further delay. But the further delay must not be unreasonable and good cause is shown where the condition of the court's business would not permit the trial to proceed.'

In the instant case, no objection can be made for the delays preceding October 2nd, as the appellant consented thereto.

The provisions of Section 1382 of the Penal Code prescribing the 60 day limitation period, upon which appellant places great stress, do not require the dismissal of a criminal action for failure to bring it to trial within the designated period even though the defendant does not consent to any extension thereof if 'good cause' is shown for not bringing it to trial within that time. (Ferenz v. Superior Court, 53 Cal.App.2d 639, 642, 128 P.2d 48; People v. Brock, 87 Cal.App. 601, 605, 262 P. 369, 263 P. 544.) Section 1383 of the Penal Code provides:

'If the defendant is not charged or tried, as provided in * * * [Section 1382], and sufficient reason therefor is shown, the Court may order the action to be continued from time to time * * *.'

What constitutes 'good cause' for the delay of a criminal trial is a matter within the discretion of the trial court, and its determination in the premises, absent a showing of any abuse of that discretion, will not be disturbed on appeal. (People v. Farrington, 140 Cal. 656, 658, 74 P. 288; In re Lopez, supra, 39 Cal.App.2d 118, 120, 245 P.2d 1; People v. Burns, 128 Cal.App. 226, 229, 16 P.2d 1015; People v. Brock, supra, 87 Cal.App. 601, 608, 262 P. 369, 263 P. 544.) The October 2nd continuance was requested by appellant's co-defendant Wallace because his attorney was engaged in a previously set civil trial. The reason for the length of the continuance was the fact that the district attorney would require additional time to subpoena the People's witnesses, some of whom lived outside the county Appellant contends that the only reason for the continuance in question was to permit counsel for Wallace to finish a civil trial, and this was not 'good cause' as it gave precedence to a civil over a criminal action, contrary to the provisions of Penal Code Section 1050, and cites Herrick v. Municipal Court, 151 Cal.App.2d 804, 312 P.2d 264, in support of this contention. The provisions relied upon merely establish a policy (People v. Tenedor, 107 Cal.App.2d 581, 583, 237 P.2d 679); are not absolute (People v. Osslo, 50 Cal.2d 75, 106, 323 P.2d 397); and do not require that criminal proceedings be given precedence over civil proceedings regardless of the circumstances. (People v. Osslo, supra, 50 Cal.2d 75, 106, 323 P.2d 397.) Collaterally the provisions of Section 681a of the Penal Code declare a policy that 'criminal cases shall be heard and determined at the earliest possible time,' and impose a duty upon the courts, judicial officers and district attorneys 'to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice.' It is obvious that these provisions do not impose an arbitrary standard because the purposes to be achieved expressly are subservient to the 'ends of...