People v. Wilson

• Decision Date: 09 July 1963
• Court: California Supreme Court
• Parties: , 383 P.2d 452 The PEOPLE, Plaintiff and Respondent, v. William R. WILSON, Defendant and Appellant. Crim. 7190.

Page 44

32 Cal.Rptr. 44

60 Cal.2d 139, 383 P.2d 452

The PEOPLE, Plaintiff and Respondent, v. William R. WILSON, Defendant and Appellant.

Crim. 7190.

Supreme Court of California, In Bank.

July 9, 1963.

Benjamin F. Marlowe, Oakland, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, and John F. Foran, Deputy Attys. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Defendant appeals from judgment of conviction entered upon jury verdicts finding him guilty of murder in the first degree (Count I) and assault with a deadly weapon (Count II). On the murder count the jury fixed the penalty at life imprisonment. Defendant contends that he was erroneously denied a speedy trial and that the prosecutor's use of his offer to plead guilty to second degree murder constituted prejudicial misconduct. After an examination of the entire record we have concluded that the asserted errors did not result in a miscarriage of justice (Cal.Const. art. VI, § 4 1/2) and hence that the judgments should be affirmed.

It is unquestioned that the evidence is sufficient to support the verdicts, and defendant makes no contention to the contrary. The record shows that defendant shot and killed his wife as the culmination of a long series of beatings and other cruelties inflicted on her, coupled with threats to kill her and their children; that sufficient time elapsed between the last quarrelsome words of the parties and the time of the killing to bring the case well within the category of first degree murder; that in committing the crime defendant went first to his house, picked up his rifle and some ammunition, drove to the place where his wife was staying, and after speaking with her took the rifle from the back seat and loaded it with ammunition from the glove compartment; that he put the weapon to his shoulder, aimed it at his fleeing wife, and fired one shot into her head and one shot into her body, killing her; that he then pointed the rifle at Ida Phillips, his wife's companion, and shot her as she cried, 'Don't shoot, don't shoot'; that defendant thereafter told the police, 'I know I'm guilty. I was the one that pulled the trigger * * *. I meant to fire it' and 'I fired at her * * *.'

The chronology relevant to defendant's contention that he was denied a speedy trial is as follows: The information charging defendant with murder and assault with a deadly weapon was filed on January 14, 1960. On January 22, 1960, defendant was arraigned and pleaded not guilty. At that time, personally and through counsel, he waived his right to be tried within 60 days of the filing of the information. Thereafter, either at defendant's request or with his acquiescence, the case was properly continued from time to time. On May 24, 1960, defendant requested June 22 as the trial date. On June 22 the prosecution asked for a continuance until July 18. Defendant's counsel indicated that he could not attend on that date because he had to go to Louisiana and would not be back in the state until August. The prosecution then suggested the end of August for trial. Defense counsel objected that that was too far in the future and suggested an earlier date, but finally proposed August 25, whereupon the trial court continued the case to August 25 'for trial.'

On August 25 defendant and his counsel appeared ready for trial. The trial court reminded counsel that in Alameda County jury trials in criminal cases did not normally start on Thursdays (August 25, 1960, was a Thursday). At this point the prosecuting attorney explained that he had just finished an eight-week trial, that he was preparing argument on a motion for new trial in another case, and that he had not yet taken his vacation. He requested that the trial date be set for October 31. Defense counsel replied that the date of August 25 had previously been set by the court for trial, and urged that he had a right to rely on that date regardless of whether new juries ordinarily came in on Thursday or not. With regard to the requested continuance date of October 31 defense counsel said, 'I will object to that day or any day, and you will set it over my objection.' Over this objection, the court continued the case until October 31, 1960, for trial. ¹

On October 25, 1960, defendant filed a motion in the trial court to dismiss on the ground that he had been denied a speedy trial. The motion was denied. Defendant then filed an application for writ of mandate with the District Court of Appeal. The petition was still pending on October 31, 1960, and at defendant's request the case was continued until disposition of the writ proceeding, without prejudice to his claim that he had not been afforded a speedy trial. The District Court of Appeal denied the writ, and trial began on November 2, 1960, over defendant's renewed objection to this effect.

Article I, section 13, of our Constitution declares that 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; * * *' ² Penal Code, section 1382 provides in relevant part that 'The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: * * *

'2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information * * * except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied * * * and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.' The relationship between the latter statute and the constitutional guarantee of a speedy trial has been variously described in the cases (see, e. g., Harris v. Municipal Court (1930), supra, 209 Cal. 55, 61(2), 285 P. 699; Matter of Ford (1911) 160 Cal. 334, 338, 116 P. 757, 35 L.R.A.,N.S., 882; People v. Romero (1936) 13 Cal.App.2d 667, 671(2)-672(3); 57 P.2d 557) it is sufficient for present purposes to adopt the statement of this court in People v. Godlewski (1943) 22 Cal.2d 677, 682(3), 140 P.2d 381, to the effect that the subject provisions of the Penal Code are 'supplementary to and a construction of' the Constitution.

Here, defendant waived the original 60-day period and waived time for a considerable period thereafter. But the last day to which defendant in any way consented was August 25, 1960. This automatically brought into operation the 10-day provision of section 1382 of the Penal Code. In other words, under that section defendant had the statutory right to be tried within 10 days after August 25 unless the prosecutor or the court showed good cause for further delay. On the facts before us there was not a sufficient showing of good cause for such delay, and the court therefore erred in overruling defendant's objection to the trial date of October 31 and in denying his subsequent motion to dismiss. ³ Defendant contends that this erroneous denial of his right to a speedy trial requires reversal of the judgments of conviction without regard to whether or not the error was prejudicial. To resolve this issue it is necessary to review the nature and purpose of the right here involved, and the appropriate remedies for its enforcement.

The Nature of the Right to a Speedy Trial. It is settled that 'the constitutional right to a speedy trial and the (hereinabove quoted) * * * statutory requirements may be waived.' (People v. Tahtinen (1958) 50 Cal.2d 127, 131(1), 323 P.2d 442.) A defendant's consent that his trial be set for a date beyond the limit prescribed 'is equivalent to a postponement upon his application' (People v. Taylor (1959) 52 Cal.2d 91, 93(1), 338 P.2d 377) and hence constitutes a waiver of the right; and consent will be presumed if the defendant fails to take the necessary procedural steps of making timely objection to such delay and thereafter moving for dismissal (id. 52 Cal.2d at p. 93(2), 338 P.2d at p. 378). The right to a speedy trial must therefore be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial. (People v. Newell (1923) 192 Cal. 659, 669(5), 221 P. 622.) It is too late to raise the point for the first time on appeal (People v. Sylvia (1960) 54 Cal.2d 115, 123(9), 4 Cal.Rptr. 509, 351 P.2d 781; People v. Jordan (1955) 45 Cal.2d 697, 708(16), 290 P.2d 484; People v. Mitman (1960) 184 Cal.App.2d 685, 689(1), 7 Cal.Rptr. 712); nor may it be raised for the first time by a petition for habeas corpus after judgment of conviction (In re Anderson (1955) 134 Cal.App.2d 552(2), 285 P.2d 690; In re Todd (1919) 44 Cal.App. 496, 502(4)-503(6), 186 P. 790) or by an application for writ of error coram nobis (People v. Martinelli (1953) 118 Cal.App.2d 94, 97(4), 257 P.2d 37, followed in People v. Jackson (1958) 165 Cal.App.2d 183, 185(2), 331 P.2d 981).

The right to a speedy trial, furthermore, will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss. Such a rule is the logical consequence of the fact that the objection and the motion to dismiss serve different purposes; and it is the rule laid down by the California decisions. To begin with, it is settled that 'When a defendant fails to object at the time a cause is set for trial beyond the statutory period, consent is presumed.' (Italics added.) (People v. Taylor (1959), supra, 52 Cal.2d 91, 93(2), 338 P.2d 377, People v. Tahtinen (1958), supra, 50 Cal.2d 127, 131(3), 323 P.2d 442; Ray v. Superior Court (1929) 208 Cal. 357, 358(1), 281 P. 391.) The twofold purpose of this requirement is well explained in People v. Lind (1924) 68 Cal.App. 575, 579(2), 229 P. 990: 'First, by calling the attention of the trial court to the facts upon which the objection is founded, it may serve to procure an earlier trial of the defendant and thus earlier end...