Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF133674. Paul E. Zellerbach, Helios (Joe) Hernandez, and Gary B. Tranbarger, Judges.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Grades Johnson was charged with (1) entering a building with intent to commit theft, a violation of Penal Code section 459; (2) driving in willful or wanton disregard for safety of persons or property while fleeing a pursuing police officer, a violation of Vehicle Code section 2800.2; and (3) resisting, delaying or obstructing a peace officer in the discharge of his employment, a misdemeanor violation of section 148, subdivision (a)(1).
All further statutory references will be to the Penal Code unless otherwise indicated.
The jury acquitted defendant on count 1 and convicted him on counts 2 and 3. Defendant was sentenced to the two-year midterm on count 2 and a concurrent 180-day sentence on count 3.
Defendant appeals, contending that the trial court abused its discretion when (1) it denied his motion to dismiss for violation of his right to a speedy trial, and (2) it admitted evidence of a prior conviction for receiving stolen property.
FACTS
Daniel Kassman was walking by a furniture store in Moreno Valley on December 6, 2006, at 6:40 a.m. He saw a broken window and door at the front of the store, with broken glass on the sidewalk. He continued his walk, which took him by the back of the store. He saw a rental truck moving in the alley behind the store. He called police.
Responding deputies found that the store had been burglarized and a substantial amount of electronic equipment had been taken. A deputy in the neighborhood saw a truck matching the description of the suspect vehicle and gave chase, activating his lights and siren. The truck failed to stop, exceeded the speed limit, and began proceeding through stop signs without stopping. Eventually, the truck slowed and the occupants, two passengers and a driver, jumped out and started running away. A deputy apprehended defendant and identified him as the driver. The equipment taken from the store was found in the truck.
Defendant testified regarding his participation in the burglary. As noted above, he was acquitted of that charge. With regard to the pursuit, he testified that he was trying to stop, but could not slow or stop the truck because the brakes and power steering were not working properly. He panicked and was afraid to stop for the deputies.
The jury apparently accepted defendant’s testimony as to the burglary charge and rejected it as to the charge of fleeing the officer.
ADDITIONAL FACTS REGARDING TRIAL
Defendant was arrested on December 6, 2006, and a felony complaint was filed on December 8, 2006. The complaint was directed against defendant and two codefendants, Daniel and Christopher Canady. Defendant was arraigned on December 8, 2006. A felony settlement conference was held on December 19, 2006. Defendant refused to waive time and made a motion for dismissal or, in the alternative, for release on his own recognizance. The trial judge, Judge McIntyre, denied the motion and the preliminary hearing was held on December 29, 2006.
An information was filed on January 11, 2007, directed at defendant and codefendant Daniel Canady (hereafter “Canady”). On January 12, 2007, defendant waived time for arraignment/trial for 60 days. Defendant was arraigned on the information on January 26, 2007. At that time, the last day for trial to commence was March 27, 2007.
It is not clear from the current record when codefendant Canady was arraigned on the information.
Trial readiness conferences were held on February 22 and 27. On the trial date of March 8, 2007, the case trailed until March 20, 2007. On March 20, defendant announced he was ready for trial, but the case trailed until March 23. On March 23, defendant again announced ready but Judge Tranbarger granted a continuance to March 27 over defendant’s objection, because the attorney for codefendant Canady was unavailable.
On March 27, the prosecution filed a written motion for a continuance on the ground that counsel for codefendant Canady was still unavailable because he was in another jury trial. Defendant opposed the motion but Judge Tranbarger found good cause for continuance until April 2, 2007.
The prosecution also filed an opposition to a motion for severance on March 27, 2007. Defendant’s motion for severance and defendant’s opposition to the prosecution’s motion for continuance are not in our record.
On April 2, 2007, the case was again continued over defendant’s objection. The trial judge, Judge Hernandez, denied defendant’s renewed motion to dismiss. Judge Hernandez stated that the case would be tried as soon as codefendant’s counsel was available, finding, “We’re talking [about] a delay of a very small number of days.”
On April 4, 2007, the case was called for trial before Judge Zellerbach. Codefendant Canady and his counsel were present and Canady agreed to a plea bargain. Defendant then renewed his motion for a dismissal. The motion was denied. Judge Zellerbach found that the unavailability of codefendant’s counsel for trial constituted good cause for a continuance within the meaning of section 1050.1. Trial began with jury selection on April 5, 2007, and a verdict was announced on April 11, 2007. Defendant then agreed to a sentencing date of May 9, 2007.
DISCUSSION
A. Defendant’s Motion to Dismiss on Speedy Trial Grounds
“‘A defendant’s right to a speedy trial is a “fundamental right” secured by both the United States and California Constitutions.’ [Citation.] In California, the right to a speedy trial is codified in several statutes. Section 1049.5 requires the court in felony cases to set a date for trial ‘within 60 days of the defendant’s arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. . . .’ Section 1382, subdivision (a)(2) provides, ‘unless good cause to the contrary is shown,’ the court must dismiss ‘a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment . . . .’ Speedy trial rights are not absolute and the court may set or continue a felony case for trial beyond 60 days from arraignment upon a showing of good cause. When the court has acted without good cause, writ relief is appropriate. [Citation.]” (Arroyo v. Superior Court (2004) 119 Cal.App.4th 460, 463-464 (Arroyo).)
In addition to sections 1049.5 and 1382, section 1050 provides procedures for continuances. It requires that a noticed motion for continuance be filed, and that a hearing be held on the motion. Section 1050, subdivision (e), states: “Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause.”
Section 1049.5 provides: “In felony cases, the court shall set a date for trial which is within 60 days of the defendant’s arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time. If the court, after a hearing as prescribed in Section 1050, finds that there is good cause to set the date for trial beyond the 60 days, it shall state on the record the facts proved that justify its finding. A statement of facts proved shall be entered in the minutes.”
Section 1382 provides that, unless good cause is shown, a case must be dismissed if it is not brought to trial within 60 days of defendant’s arraignment on the information, unless defendant waives the 60-day trial requirement.
Section 1050.1 states: “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder. The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.”
Section 1098 provides, in relevant part: “When two or more defendants are jointly charged with any public offense . . . they must be tried jointly unless the court orders separate trials.”
Defendant relies on two cases: Arroyo, supra, 119 Cal.App.4th 460, and People v. Johnson (1980) 26 Cal.3d 557 (Johnson).
In Arroyo, defendant sought a writ of prohibition when the trial court granted a continuance to a trial date more than 60 days after his arraignment, over his objection. (Arroyo, supra, 119 Cal.App.4th at p. 462.) The sole reason for the continuance was to permit Arroyo’s joint trial with a codefendant who was not arraigned until the day before Arroyo’s scheduled trial date. (Ibid.) The trial court relied on section 1050.1, but the section was inapplicable because: “Section 1050.1 permits the court to continue one defendant’s trial beyond the 60 days, when his or her codefendant’s trial has been continued for good cause shown. But [codefendant’s] trial date was never continued for good cause. Rather, it was being set for the first time within the 60-day period applicable to her. (See § 1049.5.) Her trial date was not selected until virtually the last possible day to begin Arroyo’s trial. Section 1050.1 does not provide for the automatic tacking of each newly arraigned codefendant’s statutory time to be brought to trial. Were that the case, Arroyo could face yet another 60-day period if his [other] codefendant Divas is arraigned before Arroyo’s trial commences.” (Arroyo, at p. 464.)
In the present case, section 1050.1 is applicable because defendant and Canady were charged jointly, and the trial of Canady was continued due to the unavailability of his counsel. However, the People do not cite or rely on that section, but instead argue that the issue is whether there was good cause for the continuance under section 1382.
In Arroyo, the appellate court held that a continuance for the sole reason of maintaining joinder of the cases was a continuance without good cause, and a denial of the defendant’s right to a speedy trial. (Arroyo, supra, 119 Cal.App.4th at p. 467.) The trial court failed to weigh any competing factors, especially the defendant’s right to a speedy trial, and the delay was not minimal. The trial date was 97 days after the defendant’s arraignment on an indictment and 179 days after his original arraignment on an information. (Ibid.) Accordingly, the writ of prohibition was granted and the trial court was ordered to dismiss the action. (Ibid.)
In the present case, the reason for the continuance was the unexpected unavailability of codefendant’s counsel. Such unavailability has been held to constitute good cause. (People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1009-1010.) The delay was minimal because the trial was only postponed from March 27, 2007, to April 5, 2007, a matter of seven court days.
Defendant challenges the conclusion that the unavailability of codefendant’s counsel constitutes good cause by citing Johnson, supra,26 Cal.3d 557. In Johnson, defendant was not brought to trial within the statutory period. (Id. at p. 561.) “Instead, the trial court, at the request of the public defender, and over defendant’s express objection, repeatedly continued the case, with the result that trial commenced 144 days after the filing of charges.” (Ibid.) The trial court found good cause for various continuances due to defendant’s counsel’s trial schedule.
Our Supreme Court affirmed because defendant had not been prejudiced by the delays. It summarized its holdings: “We conclude, first, that when a client expressly objects to waiver of his right to a speedy trial under section 1382, counsel may not waive that right to resolve a calendar conflict when counsel acts not for the benefit of the client before the court but to accommodate counsel’s other clients. Secondly, we conclude that, at least in the case of an incarcerated defendant, the asserted inability of the public defender to try such a defendant’s case within the statutory period because of conflicting obligations to other clients does not constitute good cause to avoid dismissal of the charges. Finally, we reaffirm the holding of People v. Wilson (1963) 60 Cal.2d 139 . . . that a defendant seeking post-conviction review of denial of a speedy trial must prove prejudice flowing from the delay of trial; we affirm here because defendant proved no prejudice.” (Johnson, supra, 26 Cal.3d at pp. 561-562.)
In explaining its decision, the court said: “What constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court. [Citations.] In reviewing trial courts’ exercise of that discretion, the appellate courts have evolved certain general principles. The courts agree, for example, that delay caused by the conduct of the defendant constitutes good cause to deny his motion to dismiss. Delay for defendant’s benefit also constitutes good cause. Finally, delay arising from unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses constitutes good cause to avoid dismissal. Delay attributable to the fault of the prosecution, on the other hand, does not constitute good cause. Neither does delay caused by improper court administration. [Citation.]” (Johnson, supra, 26 Cal.3d at p. 570, fns. omitted.)
Our Supreme Court specifically addressed the question of court congestion, especially, “those decisions which assume that court congestion or excessive public defender caseloads necessarily constitute good cause to deny dismissal.” (Johnson, supra, 26 Cal.3d at pp. 570-571.) In discussing this issue, the court said: “The same reasoning, distinguishing between chronic conditions and exceptional circumstances, applies to the delay caused by the crowded calendars of public defenders. The state cannot reasonably provide against all contingencies which may create a calendar conflict for public defenders and compel postponement of some of their cases. On the other hand, routine assignment of heavy caseloads to understaffed offices, when such practice foreseeably will result in the delay of trials beyond the 60-day period without defendant’s consent, can and must be avoided. A defendant deserves not only capable counsel, but counsel who, barring exceptional circumstances, can defend him without infringing upon his right to a speedy trial. Thus the state cannot rely upon the obligations which an appointed counsel owes to other clients to excuse its denial of a speedy trial to the instant defendant.” (Id. at p. 572.)
In Johnson, the continuances arose from the public defender’s caseload which caused a conflict among his clients and a resulting choice to bring the cases of other clients to trial before the defendant’s case. (Johnson, supra, 26 Cal.3d at p. 573.) In such a case, the trial court should consider appointment of another public defender to represent the defendant, and it should dismiss if it concludes that the delay was the fault of the state. (Id. at pp. 572-573.)
In other words, our Supreme Court disagreed with the assumption that court congestion or excessive public defender caseloads necessarily constitute good cause to deny dismissal. The trial court must make an appropriate inquiry and determine whether there was good cause for a continuance in each factual situation presented to it.
In the present case, defendant’s counsel was ready for trial. The delay resulted from the unavailability of codefendant’s counsel. The unavailability occurred because codefendant’s counsel was engaged in another trial and the other trial was proceeding more slowly than anticipated. This was a justifiable reason for a short delay and, in such a case, “the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant.” (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 501 (Greenberger).)
In his reply brief, defendant contends that Greenberger supports his position because it states that the fact that appointed counsel is overburdened is not a good cause for continuance. (Greenberger, supra,219 Cal.App.3d at p. 495.) But Greenberger describes its holding as follows: “Does the statutory preference for a joint trial (Pen. Code, § 1098) constitute good cause (§ 1382) to delay for six months the murder trial of an in-custody defendant? Our answer is yes, if, as in the instant case, the circumstances are sufficiently exceptional.” (Id. at p. 491, fn. omitted.) In reaching this conclusion, the court quoted the relevant statutes and then discussed what did not constitute good cause. In this context, it cited Johnson, supra, and Sanchez v. Superior Court (1982) 131 Cal.App.3d 884. It summarized this section of its opinion as follows: “[G]ood cause is not shown by a prosecutor’s desire for a vacation [citation], a prosecutor’s congested calendar [citation], and chronically congested courts and overburdened appointed counsel. [Citations.]” (Greenberger, at p. 495.)
The Greenberger court then discussed what does constitute good cause. It cited various examples but emphasized that “‘[w]hat constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court.’ [Citation.] The circumstances that may constitute good cause, and the amount of delay those circumstances may justify, are varied.” (Greenberger, supra,219 Cal.App.3d at p. 495.) The court then discussed the weight to be given to sections 1098 and 1382. It found that “joint trial interests constitute section 1382 good cause.” (Greenberger, at p. 499.)
The court relied on People v. Teale (1965) 63 Cal.2d 178 (Teal), reversed on other grounds in Chapman v. California (1967) 386 U.S. 18. In Teale, our Supreme Court held that “‘Where a continuance is granted upon good cause to a codefendant the rights of the other defendants are generally not deemed to have been prejudiced. [Citations.]’” (Teale, at p. 186, as cited in Greenberger, supra, 219 Cal.App.3d at p. 500.)
Greenberger then concludes that “if the precipitating cause for trial delay is justifiable, such as codefendants’ need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant.” (Greenberger, supra, 219 Cal.App.3d at p. 501.) Since the delay in Greenberger was a six-month delay, the court went on to discuss how the length of the delay affects good cause.
We thus agree with the People that Greenberger supports their position. Defendant did not show that a systemic overburdening of public defenders created the delay here. Instead, the evidence showed that the delay was due to the fact that codefendant’s counsel’s other trial was taking longer than expected. The trial court apparently found this was an exceptional circumstance rather than a situation created by a congested court calendar or overburdened appointed counsel. It therefore granted a short continuance to allow the other trial to conclude.
We therefore conclude that defendant has not shown that the trial court abused its discretion in granting a brief continuance of the joint trial due to the unexpected unavailability of codefendant’s counsel. “It is well established that what constitutes good cause for the delay of a trial is a matter within the discretion of the trial court and that its determination in the premises, absent a showing of any abuse of that discretion, will not be disturbed on appeal. [Citation.]” (People v. Ludviksen (1970) 8 Cal.App.3d 996, 999.)
B. The Admissibility of Defendant’s Prior Conviction For Receiving Stolen Property
Defendant next contends that the trial court abused its discretion in allowing the prosecution to impeach him with a prior felony conviction for receiving stolen property.
In 1982, the California Constitution was amended to allow the use of prior felony convictions “without limitation” for impeachment in criminal proceedings. (Cal. Const., art. I, § 28, subd. (f).) In People v. Castro (1985) 38 Cal.3d 301 (Castro), our Supreme Court held that this amendment did not deprive the trial court of the discretion to exclude such impeachment under Evidence Code section 352. (Castro, at pp. 312-313.)
In the earlier case of People v. Beagle (1972) 6 Cal.3d 441 (Beagle), our Supreme Court held that Evidence Code sections 352 and 788, read together, give the trial court discretion to exclude evidence of prior felony convictions when their probative value on credibility is outweighed by the risk of undue prejudice. (Beagle, at p. 453.)
Beagle was, of course, superseded by the 1983 constitutional amendment and the later discussion of the issue in Castro. However, its discussion of the applicable factors survives. (People v. Collins (1986) 42 Cal.3d 378, 391-392.)
Evidence of prior felony convictions is therefore generally admissible under Evidence Code section 788, which provides in relevant part: “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . .”
The evidence of prior felony convictions may nevertheless be excluded under Evidence Code section 352, which provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defendant elected to testify. Prior to the commencement of his testimony, defense counsel asked the trial court to determine if defendant’s 1994 conviction for receiving stolen property could be used to impeach his credibility. The trial court considered the issue under Evidence Code section 352 and concluded that the probative value of the testimony significantly outweighed its prejudicial effect.
In accordance with this ruling, the prosecutor began his cross-examination by asking: “Now, Mr. Johnson . . . back in . . . 1994, you were . . . convicted of a felony for receiving . . . stolen property, correct?” Defendant responded affirmatively.
Defendant argues that the trial court should have prevented the prosecution from using the prior conviction for impeachment because the 1994 conviction was remote, defendant was not incarcerated for most of the intervening time since the conviction, defendant was only age 20 when the conviction occurred, and defendant had no other felony convictions after the 1994 conviction.
Receiving stolen property is a crime of moral turpitude. (People v Rodriguez (1986) 177 Cal.App.3d 174, 179.)
Defendant applies the factors in People v. Burns (1987) 189 Cal.App.3d 734 (Burns). In that case, the court found that remoteness of a prior felony conviction remains a factor to consider after the passage of Proposition 8. (Burns, at p. 736.) In determining if a prior conviction is remote, the court considered (1) the length of time since the conviction; (2) the length of sentence served on the prior conviction; (3) the nature of the conviction; (4) the age of defendant at the time of the previous crime; and (5) defendant’s conduct after the prior conviction. (Id. at pp. 738-739.)
For some reason, the People do not cite Burns, nor do they discuss the Burns factors separately.
“[R]emote convictions are not to be disregarded merely because of remoteness. The question is merely one element to be considered in determining whether or not the probative value of the prior conviction will be outweighed by its prejudicial effect. [Citations.] [¶] Another factor to be considered in determining whether a prior felony conviction is remote and should be excluded is whether the accused has followed a ‘legally blameless life’ following the prior conviction. If he has, the prior conviction should be excluded. [Citations.]” (People v. Wilson (1975) 50 Cal.App.3d 811, 818-819.)
The trial court considered the admissibility of the evidence under Evidence Code section 352. It considered the length of time since the prior conviction, 12 years, and the sentence served. The court noted that defendant had been on probation for three years and he had sustained a conviction for disorderly conduct in 1996. Thus, defendant had not led a “legally blameless life” since the 1994 conviction. The trial court therefore impliedly concluded that, since receiving stolen property is a crime of moral turpitude, the prior conviction was probative on the issue of defendant’s credibility.
Page 15, footnote 8, ante.
The trial court then determined that the probative value of the prior conviction outweighed the prejudicial effect of admission of the evidence under Evidence Code section 352. In view of defendant’s subsequent misdemeanor conviction, we cannot say that the trial court abused its broad discretion under Evidence Code section 352, or that it erred in refusing to find that the conviction for receiving stolen property was too remote to be probative. (People v. Harris (2005) 37 Cal.4th 310, 337.)
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J., MILLER, J.