PEOPLE v. McCLENDON

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Appellant, v. William Moses McCLENDON and Edmond Daire, Defendants and Respondents.

No. B044283.

Decided: October 29, 1990

Fern M. Laethem, State Public Defender and Nancy Aspaturian, Deputy State Public Defender, for defendant and respondent William Moses McClendon. Donald G. Sowers, Los Angeles, for defendant and respondent Edmond Daire. Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan, Deputy Dist. Atty. Appellate Div. and Arnold T. Guminski, Deputy Dist. Atty., for plaintiff and appellant.

The People appeal from order dismissing information charging William Moses McClendon and Edmond Daire with two counts of attempted murder and one count of robbery, for failure to bring them to trial within 120 days of their arrival in California pursuant to the requirements of the Interstate Agreement on Detainers (IAD).

PRELIMINARY STATEMENT

The Interstate Agreement on Detainers, to which both California and Illinois are parties, codified in Penal Code section 1389, provides a method of transferring prisoners from one jurisdiction to another for disposition of pending charges.  (People v. Nitz, 219 Cal.App.3d 164, 167, 268 Cal.Rptr. 54.)   McClendon and Daire, who were serving time in Illinois, were returned to California pursuant to article IV of the Agreement, that is, pursuant to “a written request for temporary custody or availability” by California authorities (subd. (a)) rather than by their own request pursuant to article III.

Article IV of the Agreement provides the means by which a prosecutor, who has lodged a detainer against a prisoner in another state, can secure the prisoner's presence for disposition of the outstanding charges.  “Two important limitations ․ are placed on a prosecuting authority once it has obtained the presence of a prisoner pursuant to Art. IV.”  (United States v. Mauro (1978) 436 U.S. 340, 352, 98 S.Ct. 1834, 1843, 56 L.Ed.2d 329.)   The first is provided in subdivision (c) of this article, “In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”   The second requires the receiving state to try the prisoner on the outstanding charge before returning him to the state in which he was previously imprisoned.  (Art. IV, subd. (e).)  (436 U.S. at p. 352, 98 S.Ct. at p. 1843.)   Article V, subdivision (c) provides that “[I]n the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.”

“The purposes of the IAD are to expedite disposition of untried criminal matters in one jurisdiction affecting a prisoner in another jurisdiction, both to protect the prisoner's speedy trial rights as to such untried matters and also to minimize the interruption of his rehabilitative incarceration.  (See, e.g., People v. Cella (1981) 114 Cal.App.3d 905, 916, 920–921 [170 Cal.Rptr. 915].)”  (Marshall v. Superior Court, 183 Cal.App.3d 662, 664, 228 Cal.Rptr. 364.)

PROCEDURAL STATUS OF CASE

Daire arrived in California from Illinois by extradition on November 8, 1988, pursuant to the Interstate Agreement on Detainers (§ 1389, Pen.Code) based on a felony complaint charging two counts of attempted murder and one of robbery (No. A099591).   He and his counsel appeared for arraignment on November 14, and his preliminary hearing was set for December 20;  Daire waived time.   When, on December 20, a prosecution witness failed to appear, the prosecutor dismissed the complaint.

On January 26, 1989, the same charges were refiled against Daire;  he was arraigned on the new felony complaint (No. A741047) January 30;  his preliminary hearing was set for February 10.

On January 26, 1989, McClendon arrived in California from Illinois by extradition pursuant to the IAD based on a felony complaint (No. A099591) charging him with the same two counts of attempted murder and one count of robbery charged against Daire, and was arraigned on February 2;  his preliminary hearing was set for February 10.

On February 10 both defendants appeared with their counsel for preliminary hearing which was continued to April 7;  as to each defendant, “time is waived.”   Later, on March 31, preliminary hearing in both cases was advanced to April 5 on motion of the prosecutor.

Defendants and their counsel appeared for preliminary hearing on April 5, 1989, at which time the two cases were consolidated under case No. A099591.  The preliminary hearing went forward but was not completed on that day, and the court was about to continue it to the next day (Apr. 6) when counsel for McClendon requested another date because he could not appear on April 6;  after a discussion with counsel for Daire, they agreed to May 5;  thereafter each defendant expressly waived the right to a continuous preliminary hearing and agreed to accept May 5 on which to conclude the preliminary hearing.   On May 5, both defendants were held to answer, each was arraigned on the information by the magistrate acting under special assignment as a superior court judge, and the pretrial conference and trial setting were set for May 26.   On May 26 the pretrial conference and trial setting were continued on the court's own motion to June 9;  on June 9 the court on its own motion again continued the pretrial conference to June 14, but set the trial for June 26, 1989.

On June 14 defendants appeared with counsel and the June 26 trial date was confirmed;  McClendon filed motion to dismiss for violation of speedy trial rights under Articles IV, subdivision (c) and V, subdivision (c).   On June 16, Daire filed motion to set aside information (§ 995, Pen.Code) and motion to dismiss (§ 1389, Pen.Code).   All motions were noticed for June 26, 1989.   On June 26 McClendon filed a discovery motion, motion to dismiss (§ 1389, Pen.Code) and bail motion, but because the prosecutor only received them that day (Jun. 26) and needed time to prepare a response, the hearing was continued to July 3;  defendants declared they were not waiving any speedy trial rights.   Heard on July 3, 1989, the motions to dismiss were granted.

MOTIONS TO DISMISS

On the motions each defendant contended he had not expressly waived any right to be tried within 120 days of his arrival in California pursuant to IAD;  he had not been informed of the right to be tried within 120 days or been aware of it until much later;  and the waivers of time he made as to the preliminary hearing had not been expressly made with respect to his right under the IAD to be tried within 120 days.   Daire also contended that upon dismissal of the charges on December 20, 1988, he should have been returned to Illinois.   The prosecutor's response included, among others, the contention that time waivers under section 1389 need not be expressly made.

The trial court dismissed the information as to both defendants on the ground of “denial of the defendant's rights to be brought to trial within the provisions of Section 1389.  [¶] I don't see that their waivers of a right to speedy trial as far as preliminary examination necessarily includes a right of waiver to be brought to trial within the 1389 provisions.  [¶] So for that basis the information as to both defendants will be dismissed then.”   The court declined to dismiss with prejudice.

I

DEFENDANTS WAIVED RIGHTS UNDER THE AGREEMENT

Appellant's contention that defendants waived their rights to be brought to trial within 120 days of their return to this state pursuant to the IAD (§ 1389, Pen.Code) by waiving their rights to a speedy preliminary hearing and to a continuous preliminary hearing, comports with federal, California and out-of-state authorities.

Section 1389 of the Penal Code contains no statutory provision for waiver.   However, California has followed federal cases interpreting the IAD, which is an interstate compact approved by Congress, therefore a federal law subject to federal rather than state construction, and concluding that waiver is “indeed possible” (Brown v. Wolff (9th Cir.1983) 706 F.2d 902, 907;  United States v. Black (9th Cir.1979) 609 F.2d 1330, 1334;  People v. Nitz 219 Cal.App.3d 164, 169, 268 Cal.Rptr. 54;  Drescher v. Superior Court, 218 Cal.App.3d 1140, 1146, 267 Cal.Rptr. 661;  People v. Sampson, 191 Cal.App.3d 1409, 1415–1416, 237 Cal.Rptr. 100, quoting from Cuyler v. Adams (1981) 449 U.S. 433, 438–442, 101 S.Ct. 703, 706–709, 66 L.Ed.2d 641;  People v. Cella, 114 Cal.App.3d 905, 918, 170 Cal.Rptr. 915).

 Inasmuch as the requirement of a knowing and intelligent waiver applies only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial (Drescher v. Superior Court, 218 Cal.App.3d 1140, 1148, 267 Cal.Rptr. 661, quoting from United States v. Black (9th Cir.1979) 609 F.2d 1330, 1334), and the protections of the IAD are not founded on constitutional rights or the preservation of a fair trial, a knowing and intelligent waiver is not required for valid waivers of speedy trial rights under the IAD, although a waiver of statutory rights must still be voluntary.   This requires a showing of record that the defendant or his attorney freely acquiesced in a continuance or a trial date beyond the speedy trial period.  (Drescher v. Superior Court, 218 Cal.App.3d 1140, 1148, 267 Cal.Rptr. 661;  People v. Sampson, 191 Cal.App.3d 1409, 1417, 237 Cal.Rptr. 100, quoting People v. Sevigny (Colo.1984) 679 P.2d 1070, 1075.)

 Defendants argued on their motions that they had not been informed of the right to be brought to trial within 120 days, and mention in their briefs herein that they were unaware of their rights to a speedy trial under the IAD and were not advised of the same, although they do not raise this as an issue, perhaps because the law is clear that there is no requirement that a prisoner be informed of the time limits for bringing him to trial in the receiving state.  (Drescher v. Superior Court, 218 Cal.App.3d 1140, 1147, fn. 3, 267 Cal.Rptr. 661.)   A defendant need not be aware of the speedy trial right under IAD to validly waive it.  (People v. Nitz, 219 Cal.App.3d 164, 170, 268 Cal.Rptr. 54, citing Camp v. United States (8th Cir 1978) 587 F.2d 397, 400.)

A waiver may be effected in several ways.   In addition to an express waiver, a prisoner may waive his IAD rights “if he affirmatively requests to be treated in a manner contrary to the procedures prescribed by the IAD.”   (Brown v. Wolff (9th Cir.1983) 706 F.2d 902, 907;  United States v. Black (9th Cir.1979) 609 F.2d 1330, 1334;  People v. Nitz 219 Cal.App.3d 164, 170, 268 Cal.Rptr. 54;  People v. Sampson, 191 Cal.App.3d 1409, 1416, 237 Cal.Rptr. 100;  Marshall v. Superior Court, 183 Cal.App.3d 662, 674–676, 228 Cal.Rptr. 364), or if he acquiesces by failure to object or by silence, to continuances or to trial settings beyond the time in which the prisoner is to be tried.  (Drescher v. Superior Court, 218 Cal.App.3d 1140, 1148, 267 Cal.Rptr. 661;  Scrivener v. State (Ind.1982) 441 N.E.2d 954, 956;  People v. Newton (Colo.1988) 764 P.2d 1182, 1187;  People v. Sevigny (Colo.1984) 679 P.2d 1070, 1075.)

In Drescher v. Superior Court, 218 Cal.App.3d 1140, 267 Cal.Rptr. 661, the People contended petitioner had waived his right to go to trial within 120 days of his return to this jurisdiction by waiving his right to a speedy preliminary hearing and requesting continuances of the hearing.  (P. 1146, 267 Cal.Rptr. 661.)   After discussing various kinds of waivers, the court held denial of petitioner's motion to dismiss pursuant to the IAD was proper, and denied his petition for writ of mandate.   Said the court at page 1148, 267 Cal.Rptr. 661, “Finally, there is nothing in the record before us to suggest that petitioner or his counsel objected to the trial date of July 28, 1989, when it was set.   By freely acquiescing in the numerous continuances of the preliminary hearing, as well as the setting of a trial date well beyond the speedy trial period of article IV, subdivision (c), petitioner waived his statutory right to a trial within 120 days of his return to this state.  (See People v. Sampson, supra, 191 Cal.App.3d 1409, 1417, [237 Cal.Rptr. 100], discussing Scrivener v. State (Ind.1982) 441 N.E.2d 954, 956.)”   In People v. Sampson, 191 Cal.App.3d 1409, 237 Cal.Rptr. 100, defense counsel requested the date of trial “without comment or objection by appellant”.   (P. 1417, 237 Cal.Rptr. 100.)   The court in People v. Sevigney (Colo.1984) 679 P.2d 1070 found no waiver but discussed the requirement that the waiver be voluntary, that is, a showing of record that defendant or his attorney acquiesced in a continuance or trial date beyond the speedy trial period.  (P. 1075.)   Also, in Scrivener v. State (Ind.1982) 441 N.E.2d 954, “appellant's failure to object to the trial date when it was set, on or before April 1, 1981, precludes him from having the information dismissed under ․ Article 3 ․” (p. 956);  and in People v. Newton (Colo.1988) 764 P.2d 1182, 1187 the court held that silence of defendant or his counsel in the face of a belated trial setting extends the speedy trial period to the scheduled trial date, constituting a waiver of right to speedy trial under the IAD.

 Accordingly, we conclude that defendants' waivers of a speedy preliminary hearing and to a continuous preliminary hearing also constituted waivers of speedy trial rights under article IV, subdivision (c).   The 120–day period in which a prisoner must be brought to trial pursuant to the IAD begins to run from the day of his return to the receiving state, and said period necessarily must include the time in which to have the preliminary examination and all necessary hearings.

II

NO VIOLATION OF McCLENDON'S RIGHTS

 McClendon arrived in this state on January 26, 1989;  from that date, 184 days expired by the time the information was dismissed on July 3, 1989.   However the record shows that McClendon waived a total of 101 of those days, leaving 83 to be counted against the state.   As to him, the order dismissing the information was erroneous.

On February 10, 1989, he expressly waived time to April 5, or 54 days.   On April 5, he requested a continuance of the preliminary hearing for which he waived his right to a continuous preliminary hearing and chose the date of May 5 on which to complete it;  this waiver was for 30 days.   McClendon filed his motion to dismiss on June 14 which was granted July 3, 1989, thus 17 additional days make a total of 101 days waived by McClendon.

III

DAIRE'S RIGHTS NOT VIOLATED

 Daire arrived in California on November 8, 1988.   From that day to July 3, 1989, when the order of dismissal was made, a total of 237 days expired.   However, the record shows that Daire waived a total of 135 days leaving 102 days to be counted against the state.

On November 14, 1988 Daire expressly waived time to December 20, amounting to 36 days;  and on February 10, 1989 waived time to April 5, amounting to 54 days, a total of 90 days before the preliminary hearing.   Daire concedes in his brief herein that People v. Sampson, 191 Cal.App.3d 1409, 1416, 237 Cal.Rptr. 100, supports the waivers on November 14, 1988, and February 10, 1989 “because on both of those occasions the respondent affirmatively requested continuance to prepare a defense.”  (See also People v. Nitz, 219 Cal.App.3d 164, 169, 268 Cal.Rptr. 54.)

Appellant's claim that Daire also waived time on April 5, 1989 to May 5, 1989, amounting to 30 days, is well taken.   Daire's assertion in his brief herein that he “only agreed to waive his right to a continuous hearing with the understanding that he reserved his right to a speedy trial” is clearly erroneous, wholly unsupported by the record.   To the contrary, the record establishes the following:  The preliminary hearing in the consolidated case did not conclude on April 5, 1989, because one witness had yet to testify;  the magistrate was about to order the completion of the preliminary hearing to the next day (Apr. 6), when Mr. Patton, counsel for McClendon addressed the court, “Perhaps, we could select another date to take the testimony of the other witness.   My client would agree.”   The magistrate responded, “It is my understanding that the defendants were not inclined to waive time.   Well, there is no need of talking to your client, Mr. Patton, if Mr. Daire is not willing to waive time, we are certainly not going to sever the remaining portion of the preliminary hearing.”   Following an off-the-record discussion between Mr. Patton and counsel for Daire, Mr. Patton addressed the court, “We have agreed upon the date of May 5th, your Honor,” whereupon each defendant on the record expressly agreed to give up his right to a continuous preliminary hearing and “accept the date of May 5th for completion of this preliminary hearing.”   Daire waived 30 days to May 5, 1989.

Daire filed his motion to dismiss on June 16, 1989, and it was not disposed of until July 3, 1989, within a reasonable time.   Filing the motion constituted an affirmative request to be treated in a manner contrary to the procedures prescribed in article IV, subdivision (c).  (Fasano v. Hall (D.Mass.1979) 476 F.Supp. 291, 293 [affd. 615 F.2d 555].)  He thus waived an additional 15 days making a total of 135 days waived by Daire.   Subtracting those time periods (135 days) from the total elapsed time (237 days), Daire would have been brought to trial within the 120–day period.   As to him, 102 days of the 120–day period are counted against the state.

IV

DISMISSAL OF COMPLAINT ON DECEMBER 20, 1988 NOT DEPRIVE STATE OF JURISDICTION OVER DAIRE

Daire contends that when, on December 20, 1988, the felony complaint was dismissed by the prosecutor for failure of a witness to appear, California lost jurisdiction over him sometime during the period before the filing of the second felony complaint on the same charges, on January 26, 1989, arguing variously, that detaining him “without charges violated the Interstate Agreement on Detainers,” “failure to return him to Illinois was a violation of the IAD,” and “the delay violated the IAD.”   Daire cites no authority for loss of jurisdiction because of a violation of the Agreement.

 Section 1389.8, Penal Code provides that “It shall be the responsibility of the agent of the receiving state to return the prisoner to the sending state upon completion of the proceedings”;  and article V, subdivision (e) provides, “At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.”   Clearly, dismissal of the complaint by the People for failure of a witness to appear, was not a “completion of the proceedings” contemplated by the Agreement, for the People had the right to refile the charges, and did so.   However, the district attorney delayed in doing so—perhaps because of efforts to assure the presence of the prosecution witness, or efforts to obtain the presence of McClendon, a codefendant on the same complaint (No. A099591) whose arrival in California was on the same day the charges against Daire were refiled.   However, the delay remains unexplained.

 First, the Agreement says nothing about requiring a dismissal for failure to promptly refile charges or that any such delay results in a loss of jurisdiction of the receiving state.   The Agreement has three provisions for dismissal, the first and second of which are found in articles IV, subdivision (e), and III, subdivision (d)—if trial is not had on the charges prior to the return of the prisoner to the original place of imprisonment pursuant to article V, subdivision (e)—and the third is found in article V, subdivision (c)—if the action is not brought to trial within the period provided in article III or article IV (120/180 days from the prisoner's arrival in the receiving state).   Thus the failure of the Agreement to expressly provide for a dismissal because of failure to promptly refile charges is persuasive evidence that the state does not lose jurisdiction between the time of the dismissal of the charges by the prosecutor and the refiling of the felony complaint.   However, the unexplained failure to promptly refile the charges against Daire is subject to the sanction that the period between the dismissal and refiling of the charges is counted against the state in determining whether the time periods in articles III, subdivision (a) and IV, subdivision (c) of the Agreement have expired.

 Second, we agree with appellant's argument that the provision in the Agreement requiring the return of the prisoner to the sending state “At the earliest practicable time consonant with the purposes of this agreement” (art. V, subd. (e)), is directory.   We think it is clear from People v. Posten, 108 Cal.App.3d 633, 166 Cal.Rptr. 661 that dismissal of the charges by a court does not automatically terminate the jurisdiction of the receiving state because of the option to seek appellate review or to refile the charges.

In People v. Posten, 108 Cal.App.3d 633, 166 Cal.Rptr. 661, because of the inadmissibility of certain evidence, the trial court on March 30, 1978, under section 995, Penal Code, dismissed the charges against Posten, who had been sent here by Virginia at his own request pursuant to the IAD;  notice of appeal was filed by the prosecution on April 4;  on June 5 the appeal was dismissed for the People's failure to promptly pursue it;  it was reinstated on June 28, and on November 16, this court reversed the order of dismissal.  (108 Cal.App.3d at pp. 639–640, 166 Cal.Rptr. 661.)   On February 9, 1979, Posten's motion to dismiss on grounds of denial of a speedy trial under section 1389, Penal Code, was denied.   Trial was commenced on April 12, 1979.   Posten appealed from the judgment, urging, inter alia, that the 180–day limitation of the Agreement had been violated.   The court found the running of the time period was tolled during four time periods, only one of which is here material;  that period consisted of the time from April 4, 1978, to June 5, and June 28 to January 17, 1979, during which the People's appeal was pending.   The court said, “Finally, appellant was unable to stand trial during the time the People's appeal was pending.   Appellant argues that the district attorney's office should have been required to avail itself of the continuance procedure provided for by Penal Code section 1389, article III, subdivision (a), or in the alternative, should have filed a new complaint and proceeded with a new preliminary hearing.”  (P. 643, 166 Cal.Rptr. 661.)   The court rejected the continuance argument but stated “Although Anderson v. Superior Court (1967) 66 Cal.2d 863 [59 Cal.Rptr. 426, 428 P.2d 290], cited by appellant, indicates that filing a new complaint would be acceptable procedure in such case, it does not compel it.   The district attorney's office had a right of appeal which they exercised.”  (108 Cal.App.3d at p. 643, 166 Cal.Rptr. 661.)

 The Posten ruling is significant for two reasons.   First, it is clear that the 995 dismissal did not automatically deprive the court of jurisdiction because of the option of the People to appeal or refile the charges.   So here too, while the People could not appeal from the dismissal of the felony complaint by the magistrate (at the request of the prosecutor) (§ 871.5, Pen.Code;  People v. Mimms, 204 Cal.App.3d 471, 251 Cal.Rptr. 672), the People had the right to refile the charges.   Second, a failure to mention the 23–day period in which the People permitted the first appeal to be dismissed for failure to pursue it, indicates the court, while not including the 23 days in the tolling of the 180–day statute, did not deem jurisdiction to have been lost during that period.1

 Third, under the circumstances, we do not think the delay, even though unexplained, to be unreasonable.   The Agreement provides that the prisoner shall be returned to the sending state at “the earliest practicable time consonant with the purposes of this agreement.”  (Art. V, subd. (c).)  The adoption of the Agreement was an effort to provide for the orderly and expeditious disposition of untried charges lodged against a person incarcerated in another state.  (Pen.Code, § 1389, art. I;  People v. Posten, 108 Cal.App.3d 633, 640, 166 Cal.Rptr. 661.)   An immediate return of Daire to Illinois without refiling the charges and disposing of them would not have been consonant with the purpose of the Agreement.   Moreover, the dismissal by the prosecutor was not a “completion of the proceedings” contemplated in section 1389.8;  there is not the finality in such a dismissal there is in a dismissal ordered by the court, with prejudice, or in a judgment entered after trial.

 Finally, were we to accept Daire's assertion that the delay was a violation of article V, subdivision (e) and/or section 1389.8, Penal Code, it would not strip the state of jurisdiction.  (See People v. Nitz, 219 Cal.App.3d 164, 170, 268 Cal.Rptr. 54.)  People v. Nitz and federal cases cited therein, although procedurally unlike the instant case, teach that IAD violations do not cause a court to lose jurisdiction where the prisoner fails to timely raise the issue, because the IAD amounts to nothing more than a set of procedural rules which clearly do not rise to the level of constitutionally guaranteed rights.  (219 Cal.App.3d at p. 170, 268 Cal.Rptr. 54.)   In Nitz, even a violation of the 180–day rule was not such as to deprive the state of jurisdiction defendant not having timely raised the issue.

DISPOSITION

The orders are reversed.

FOOTNOTES

1.   When the charges against Daire were refiled, no claim of lack of jurisdiction was made by him.   Of course, jurisdiction may be raised at any time, but inasmuch as no jurisdictional issue is here involved and at most, only a possible violation of the IAD, his failure to then raise the issue and continue with the criminal proceedings could operate as a waiver of any nonjurisdictional violation.  (See People v. Nitz, 219 Cal.App.3d 164, 170, 268 Cal.Rptr. 54.)

LILLIE, Presiding Justice.

JOHNSON and FRED WOODS, JJ., concur.

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