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Court of Appeal, First District, Division 1, California.

Henry L. CROCKETT and Beverly Ann Crockett, Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 35161.

Decided: October 22, 1974

Sheldon Portman, Public Defender, C. Randall Schneider, Deputy Public Defender, Santa Clara County, San Jose, for petitioners. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., James M. Lee, Deputy Atty. Gen., San Francisco, for respondent and real party in interest.

For Opinion on Hearing see, 121 Cal.Rptr. 457, 535 P.2d 321.

We issued our alternative writ of mandate to the Santa Clara County Superior Court for the purpose of determining whether petitioners have been denied their constitutional right to a speedy trial of felony charges pending against them in that county.   At issue is the validity of an order of the superior court denying their motion for dismissal of the charges.

While petitioners were confined in an Alameda County jail awaiting trial on felony charges in that county, a complaint was filed, July 20, 1973, in a Santa Clara County municipal court charging them with robbery and other offenses.   Following conviction and sentence in the Alameda County proceedings and their continued incarceration in that county's jail, they delivered notice, on November 7, 1973, to the Santa Clara County Prosecutor of their desire to be brought to trial on that county's charges.   The notice was delivered in accordance with Penal Code section 1381, which as relevant here, provides:

“Whenever a defendant has been convicted, ․ and has been sentenced to and has entered upon a term of imprisonment ․ and at the time of the entry upon such term of imprisonment ․ there is pending, in any court of this state, any other indictment, information, [or] complaint ․ the district attorney of the county in which such matters are pending shall bring the same defendant to trial ․ within 90 days after such person shall have delivered to said district attorney written notice of ․ his desire to be brought to trial․  In the event that the defendant is not brought to trial ․ within the 90 days as herein provided the court in which such charge ․ is pending must, on motion ․ of the defendant ․, dismiss such action․”  (Emphasis added.)

On December 29, 1973, petitioners, their Alameda County sentences having been served, were brought to Santa Clara County where, following appropriate municipal court proceedings, they were on February 15, 1974, arraigned in the superior court 100 days after delivery of their Penal Code section 1381 notice.   On that day the Santa Clara County charges were set to be tried on March 27, 1974.

Thereafter, March 26, 1974, on petitioners' motion the superior court dismissed the pending charges on account of the People's failure to bring them to trial within 90 days.   The prosecution thereupon rearrested and recharged petitioners for the same felony offenses as had been the subject of the earlier charges and dismissal.

The new proceedings were instituted on the authority of Penal Code section 1387, which provides:

“An order for the dismissal of the action, made as provided in this chapter [which chapter includes section 1381], is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.”  (Emphasis added.)

On June 3, 1974, petitioners' motion to dismiss the reestablished charges on grounds of unconstitutional denial of their right to a speedy trial was denied by the superior court.   The instant mandate proceedings followed.

We first discuss some considerations, not here in dispute, but nevertheless relevant to our determination of the problem presented.

On petitioners' motion to dismiss the refiled charges, the People neither made, nor attempted, any showing of good cause or justification for their failure to bring them to trial in the earlier proceedings within the statutory 90–day period.

 Section 1381 is one of several Penal Code sections declaratory of the constitutional right to a speedy trial.   Such statutes are “ ‘supplementary to and a construction of’ the Constitution.”  (Barker v. Municipal Court, 64 Cal.2d 806, 812, 51 Cal.Rptr. 921, 925, 415 P.2d 809, 813;  People v. Wilson, 60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452.)   The companion statutes are section 1381.5, concerning the right of a federal prisoner to timely trial on state charges, and section 1382, providing generally for trial on felony charges within 60 days of the filing of the indictment or information.   Section 1382 provides for dismissal for failure to comply, “unless good cause to the contrary is shown.”   While sections 1381 and 1381.5 contain no similar clause, it is established that a satisfactory showing of “good cause to the contrary” will defeat a dismissal under those sections also;  this is so because “ ‘[w]hat is a speedy trial in the constitutional sense ․ depends on the circumstances of each case bearing on ․ good cause’ for the delay in bringing a defendant to trial․”  (Emphasis added.)  (Barker v. Municipal Court, supra, 64 Cal.2d p. 812, 51 Cal.Rptr. p. 925, 415 P.2d p. 813;  In re Lopez, 39 Cal.2d 118, 120, 245 P.2d 1;  see also Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393;  People v. Superior Court (Mahle) 3 Cal.App.3d 476, 487, 83 Cal.Rptr. 771.)

 As noted, Penal Code section 1387 provides that dismissal of a felony charge under sections 1381, 1381.5 or 1382 is not “a bar to any other prosecution for the same offense․”  But it does not preclude the accused from asserting that he has been denied his constitutional right to a speedy trial for the offense in question.  (Bellizzi v. Superior Court, 12 Cal.3d 33, 38, 115 Cal.Rptr. 52, 524 P.2d 148.)

 And we observe that an accused may waive his right to the statute's timely trial by his failure to object to a trial date beyond the statutory period.  (People v. Robinson, 266 Cal.App.2d 261, 264, 72 Cal.Rptr. 33;  Dulsky v. Municipal Court, 242 Cal.App.2d 288, 290–291, 51 Cal.Rptr. 381;  People v. Vigil, 189 Cal.App.2d 478, 480, 11 Cal.Rptr. 319.)   Here petitioners, 100 days after delivery of their section 1381 notice, made no objection to the date set for the trial.   But it is now established that such a failure to object, after the statutory period has run, does not constitute such a waiver.  (Sykes v. Superior Court, 9 Cal.3d 83, 93–94, 106 Cal.Rptr. 786, 507 P.2d 90;  People v. Wilson, supra, 60 Cal.2d 139, 146–148, 32 Cal.Rptr. 44, 383 P.2d 452.)   Accordingly, petitioners may not be deemed to have waived their right to trial within the specified 90–day period.

We come now to the disputed issues of the proceedings before us.

The trial court, in the ruling here under consideration, found petitioners to have suffered no “substantial prejudice in the delay” in bringing them to trial on the charges of the first complaint.   Relying principally on Jones v. Superior Court, 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10, the People argue that absent such a showing of “prejudice,” the ruling of that court must be sustained.

We have concluded, under the later authority of Sykes v. Superior Court, supra, 9 Cal.3d 83, 106 Cal.Rptr. 786, 507 P.2d 90, that the People's contention is untenable.

 Ordinarily, an insubstantial delay in bringing an accused to trial is not violative of constitutional strictures unless the accused, himself, shall show prejudice.   But where the delay is extended, the burden of establishing the absence of prejudice is placed upon the People.   The latter rule is expressed by Barker v. Municipal Court, supra, 64 Cal.2d 806, 812, 51 Cal.Rptr. 921, 925, 415 P.2d 809, 813, in this manner:  “When there has been an extended delay in bringing a defendant to trial, ‘it is not necessary that the party accused affirmatively show prejudice․  It is enough for the defendant to show that the prosecution has been unreasonably delayed.   It will not be presumed that good cause for the delay in fact existed.   If there was any good cause, it was for the prosecution to show it.’ ․” (Emphasis added.)

 Sykes v. Superior Court, supra, 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 790, 507 P.2d 90, 94, has pointed up a refinement of the foregoing rule.   Where the Legislature has implemented the speedy trial provisions of the state and federal Constitutions by statutes such as Penal Code sections 1381, 1381.5 and 1382, the failure of the People to observe the statutory time limits for bringing a criminal case to trial “is prima facie in violation of a defendant's constitutional right.”  (Emphasis added.)   When such a prima facie showing is made by the accused, the burden of establishing good cause for the delay must be borne by the People.   Considerations whether the delay is “extended” become irrelevant.

 It may well be that the delay in bringing petitioners to trial was not an extended one, and that the probability of resultant prejudice to them was slight.   But in such a case the burden resting on the People is not necessarily an onerous one.   Good cause for delay in a criminal trial depends upon the circumstances of the case.  (Caputo v. Municipal Court, 184 Cal.App.2d 412, 418, 7 Cal.Rptr. 435;  Herrick v. Municipal Court, 151 Cal.App.2d 804, 807, 312 P.2d 264.)   Such good cause for a trial beyond the statutory period has been found where—a witness was unavailable due to illness (People v. Bracamonte, 253 Cal.App.2d 980, 983, 984, 61 Cal.Rptr. 830), the trial judge became ill (People v. Camilo, 69 Cal. 540, 11 P. 128), the trial court's calendar was congested (People v. Weiss, 50 Cal.2d 535, 559, 327 P.2d 527;  In re Lopez, 39 Cal.2d 118, 120, 245 P.2d 1;  People v. Bryant, 5 Cal.App.3d 563, 571, 85 Cal.Rptr. 388;  People v. McFarland, 209 Cal.App.2d 772, 776, 26 Cal.Rptr. 596), a witness through no lack of prosecutorial diligence was unavailable (Pickett v. Municipal Court, 12 Cal.App.3d 1158, 1162–1163, 91 Cal.Rptr. 315), and multiple defendants were granted separate trials (People v. Chapman, 261 Cal.App.2d 149, 158–159, 67 Cal.Rptr. 601;  People v. Moran, 144 Cal. 48, 56–57, 77 P. 777).   Of course, as we have suggested, where delay may fairly be attributed to the defendant (People v. Bryant, 5 Cal.App.3d 563, 571, 85 Cal.Rptr. 388;  Dulsky v. Municipal Court, supra, 242 Cal.App.2d 288, 290–292, 51 Cal.Rptr. 381), or his attorney (People v. Snyder, 276 Cal.App.2d 520, 524, 80 Cal.Rptr. 822;  People v. Santos, 134 Cal.App. 736, 744, 26 P.2d 522), good cause for such delay is shown.   And where, as here, preliminary proceedings in the municipal court (see Pen.Code, § 738) are necessary in bringing the case to trial, delays caused by the defendant in that court must reasonably be charged against him.

 We are unpersuaded by petitioners' argument that the People were under a duty to promptly try the Santa Clara County charges while they were in the Alameda County Jail, even had there been no Penal Code section 1381 notice to the prosecutor.   The court in People v. Godlewski, 22 Cal.2d 677, 684, 140 P.2d 381, found neither unreasonableness, nor unconstitutionality, in the statute's requirement of such notice before an incarcerated defendant is entitled to trial in another county on charges unrelated to his detention.  (See also In re Mugica, 69 Cal.2d 516, 523, 72 Cal.Rptr. 645, 446 P.2d 525;  People v. Jacobs, 27 Cal.App.3d 246, 256–257, 103 Cal.Rptr. 536;  People v. Rowden, 268 Cal.App.2d 868, 872, 74 Cal.Rptr. 448;  People v. Robinson, 266 Cal.App.2d 261, 265, 72 Cal.Rptr. 33.)

 Had the People here made some showing tending to establish good cause for the delay after delivery of the section 1381 notice, it would have been the trial court's duty to apply the test most recently reiterated in Bellizzi v. Superior Court, supra, 12 Cal.3d 33, 38, 115 Cal.Rptr. 52, 55, 524 P.2d 148, 151, i.e., whether “the prejudicial effect of the delay outweighed any justification for it.”  (And see Sykes v. Superior Court, supra, 9 Cal.3d 83, 106 Cal.Rptr. 786, 507 P.2d 90;  Jones v. Superior Court, supra, 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10.).   The prejudice to be weighed would only have been that for which the petitioners were not responsible.  (Bellizzi v. Superior Court, supra, 12 Cal.3d p. 38, 115 Cal.Rptr. 52, 524 P.2d 148.)

 Since the People, on whom the burden rested, made no attempt whatever to show good cause for the delay, the record establishes the denial to defendants of their constitutional right to a speedy trial of the twice-filed charges.   The order of the superior court denying petitioners' motion to dismiss was erroneous and must be set aside.

The peremptory writ of mandate will issue.

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