Opinion
Rehearing Denied Jan. 19, 1972.
Opinion on pages 420 to 427 omitted
HEARING GRANTED
See 7 Cal.3d 480 for Supreme Court opinion.
For Opinion on Hearing, see 102 Cal.Rptr. 744, 498 P.2d 992.
[99 Cal.Rptr. 208] Anderson, Epstein, Litt, Lund & Tockman, by David B. Epstein, Los Angeles, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Nelson P. Kempsky and John H. Darlington, Deputy Attys. Gen., for plaintiff and respondent.
STEPHENS, Acting Presiding Justice.
By information A543205 dated January 30, 1969, defendant and another not a party to this appeal were charged with one count of burglary (Pen.Code § 459), to which defendant pleaded not guilty. By information A581416 dated February 21, 1969, defendant was charged in Count I with burglary (not the burglary charged in information A543205), and in Count II, with assault with a deadly weapon (Pen.Code § 245), to both of which defendant also pleaded not guilty. On May 23, 1969, informations A543205 and A581416 were consolidated for trial. On May 28, 1969 defendant's motion to have both informations dismissed 'for lack of speedy trial under the 60-day statutory rule' was denied. On June 6, 1969, information A581416 was amended to add Count III, a charge of receiving stolen property (Pen.Code § 496), to which defendant [99 Cal.Rptr. 209] pleaded guilty; defendant changed his plea to guilty on the burglary charged in A543205; and Counts I and II of information A581416 were dismissed in the interest of justice. Judgment was entered, and defendant was sentenced to the terms prescribed by law (terms to run concurrently) on the two counts to which defendant pleaded guilty (Count I in A543205 and Count III in amended A581416). Defendant appeals from the judgment.
Defendant makes two contentions on appeal: (1) 'all counts of information A581416 should be dismissed since [he] was denied his right to a speedy trial under Penal Code section 1382'; (2) the convictions on the two counts to which he pleaded guilty 'should be reversed since in making a guilty plea there was no express waiver of [defendant's] constitutional rights to confrontation of witnesses and against self incrimination.'
Defendant's first contention must fail. Initially, we take notice that of 'all' (three) of the counts of information A581416 that defendant would have us dismiss, Counts I and II were dismissed. Therefore, the count which defendant apparently would have us dismiss is Count III (added by amendment on June 6, 1969), to which he pleaded guilty. However, at the time that defendant made his motion to dismiss information A581416 for denial of a speedy trial, Count III had not yet been added to the information, and on the same day that count was added to the information, defendant pleaded guilty thereto. Recognizing that defendant may have deemed it useless to restate a motion to dismiss the newly added count, nevertheless where new grounds to so move or otherwise object to the amendment exist and they are not raised, they may be deemed waived. However, defendant's first contention would have to fail even if we were to relate the time of the added Count III back to the date of the original information filed February 21, 1969. In People v. Wilson, 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 49, 383 P.2d 452, 457, the court held: 'The right to a speedy trial . . . will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.' Therefore, because information A581416 was filed February 21, 1969 and the defendant had numerous opportunities before the court to object to a delay of his trial but did not prior to May 23, 1969, defendant is deemed to have waived his right to a speedy trial until May 23, 1969. However, even then, Penal Code section 1382 did not require dismissal so long as there existed good cause to continue the trial. 'Good cause' has been variously defined, but it certainly exists whenever the delay results from defendant's own acts. (People v. Bryant, 5 Cal.App.3d 563, 85 Cal.Rptr. 388.) At the hearing of defendant's motion to dismiss on May 23, 1969, the following exchange took place between the court and defense counsel:
The charge added by amendment had its genesis in the same factual circumstances as the original charges; however, the delay in bringing defendant to trial once the charges been filed was not involved in the delay in filing the new charge. (See Jones v. Superior Court, 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10; People v. Dontanville, 10 Cal.App.3d 783, 89 Cal.Rptr. 172.)
'[Defense counsel]: Your Honor, at this time I would state that in my opinion the defendant is not ready to go to trial, meaning his case is not ready.
'The Court: You have previously so indicated to the Court and yet the Court in asking [defendant] whether he would consent to your request for a continuance and waive time has indicated to the Court that he would not waive time.
[99 Cal.Rptr. 210] '[Defense counsel]: Your Honor, on both cases which have been consolidated the defendant would make a motion to dismiss for lack of speedy trial under the 60-day statutory rule.
'The Court: Very well. The Court denies the motion in both cases.
'[Defense counsel]: In that event, your Honor, the defendant now makes a motion for a continuance for the purpose of both seeking out and interviewing witnesses which I--at least one of which I believe may be material to the case, an important issue in the case.'
Apparently, defendant was attempting to whipsaw the court between his right to a speedy trial and his right to an effective trial. (People v. Snyder, 276 Cal.App.2d 520, 523-524, 80 Cal.Rptr. 822.) Such maneuvering was specifically disapproved by the California Supreme Court in People v. Floyd, 1 Cal.3d 694, 707, 83 Cal.Rptr. 608, 464 P.2d 64.
In point, the following typical exchanges were had between the court and defendant (with interjections by defense counsel, Mr. Horne) in proceedings held on April 21, 1969 in this case:
In addition to what has been said, there is yet another ground upon which defendant's first contention must fail: defendant has failed to show that he was in any way prejudiced by any delay of trial if, in fact, there was such delay. A failure to establish prejudice is fatal to a contention that the right to a speedy trial has been denied. (People v. Wilson, supra, 60 Cal.2d at p. 152, 32 Cal.Rptr. 44, 383 P.2d 452.)
Defendant's second contention is that his convictions must be reversed because [99 Cal.Rptr. 211] in making his guilty pleas he did not expressly waive his constitutional rights of confrontation and self-incrimination. In particular, defendant relies upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. In Boykin, the United States Supreme Court held that it is error for a 'trial judge to accept [a] guilty plea without an affirmative showing that it was intelligent and voluntary.' (395 U.S. at p. 242, 89 S.Ct. at p. 1711.) In Tahl, the California Supreme Court interpreted Boykin to mean that 'the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation . . . and against self-incrimination, as well as the nature of the charge and consequences of his plea.' Boykin was decided June 2, 1969, defendant pleaded guilty June 6, 1969, and Tahl was decided November 7, 1969. However, notwithstanding the fact that defendant entered his guilty pleas before Tahl was decided, the more definitive test of Tahl is applicable to defendant's pleas because the court in deciding Tahl 'was not imposing requirements in addition to those set out in Boykin but was merely expounding for the guidance of the California trial courts the specific procedure which the holding in Boykin demands. . . . [T]he exactions of Boykin, as explained in Tahl, [are] applicable to all pleas entered after Boykin.' (People v. Rizer, 5 Cal.3d 35, 40, 95 Cal.Rptr. 23, 27, 484 P.2d 1367, 1371.)
But, defendant's reliance upon Tahl is misplaced. The requirement of Tahl is that the record show that defendant 'was aware, or' made aware of his right to confrontation, to jury trial, and against self incrimination. Defendant does not contend that he was not made aware of his right to jury trial, and the record clearly shows that any such contention, if made, would be unfounded. Defendant does contend that he was not made aware of his right to confrontation and his right against self incrimination. The record, however, shows that he was aware of those rights. On April 22, 1969, defendant made a motion to represent himself in propria persona. As part of the procedure in making such a motion, defendant filled out a court form entitled 'PETITION TO PROCEED IN PROPRIA PERSONA.' The form reads in pertinent part as follows:
During the proceeding in which defendant entered the guilty pleas in issue, the following dialogue took place:
Though defendant filled out the form, he did not sign it. However, the record discloses that at three different times defendant explained to the court that his reason for not signing the form he had filled out was that it contained the following other language which defendant believed to be untrue: 'I understand that there are approximately 250 deputies in the office of the Los Angeles County Public Defender and that many, if not the vast majority, of the Deputy Public Defenders are excellent trial lawyers capable of handling any type of criminal case assigned to them.'
'I. I am the defendant in the above-entitled case, and I certify to the Court that I can read and write. I understand that my constitutional rights include the following:
'. . ..
'c. I understand that I have the right to be confronted in open court by all witnesses who will be called to testify against me, and that I have a right to cross-examine those witnesses at the time of trial.
'd. I understand that I have the right to testify at the time of trial, but that I cannot be compelled to testify at the time of trial unless I so desire.
'. . ..'
The requirement of Tahl is that the record 'contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination.' We believe that the record in this case makes it abundantly clear that defendant was aware of these rights, even though he ultimately [99 Cal.Rptr. 212] withdrew his motion to proceed in pro per.
In addition to this form, in at least three different habeas corpus petitions prepared by defendant personally, he made reference to the Sixth Amendment (which contains the right to confrontation):
The judgment is affirmed.
AISO and REPPY, JJ., concur.
Furthermore, if defendant is in fact complaining of a delay by the state in prosecuting the added Count III, he has failed to express this; he has failed to demonstrate that there was such delay; and he has failed to establish that he was prejudiced by such delay if it did exist. (People v. Bethea, 18 Cal.App.3d 930, 939, 96 Cal.Rptr. 229.)
'MR. HORNE: Your Honor, I request a two week continuance on behalf of [defendant] as we now do not have a defense prepared.
'THE COURT: Mr. Kirkpatrick, you have heard your counsel request a continuance to prepare a defense, do you waive time?
'DEFENDANT: No, Your Honor.
'THE COURT: Mr. Kirkpatrick, you realize that if you refuse to waive time, I cannot grant you a continuance, and you could be forced to go to trial without a defense. Now do you waive time?
'DEFENDANT: No, your Honor, today is the sixtieth (60) day since the filing of the information . . . and this Court either has to try me today or dismiss the case, therefore I refuse to waive time.
'THE COURT: But Mr. Kirkpatrick, your counsel says he needs time to prepare your defense.
'DEFENDANT: Your Honor, Mr. Horne has had six weeks to prepare a defense, and he has done nothing. I refuse to give up my right to a speedy trial.
'THE COURT: Mr. Kirkpatrick, I think you should do as your attorney advises.
'DEFENDANT: . . . I do not want Mr. Horne because I don't feel he has my best interest at heart, because he was supposed to ask for certain things, several weeks ago, and since he didn't, I did. Now you appointed him so he is your problem, not mine.
'THE COURT: Mr. Kirkpatrick,--the Court has appointed Mr. Horne to represent you. He now requests a continuance, to prepare your defense, for this you must waive time. If you do not waive time, you could be forced to go to trial without a defense.--Now do you waive time?
'DEFENDANT: No, your Honor.
'THE COURT: You realize that this Court can force you to go to trial, possibly today, without a defense.
'DEFENDANT: I'll take that chance. I refuse to waive time, as today is the sixtieth (60) day and you either have to try me today, or dismiss the case.
'[The matter trailed by court till 2:00 p.m.]:
'. . ..
'MR. HORNE: Your Honor, I feel that a continuance is necessary to propare a defense and enhance my client's chances.
'THE COURT: You have heard your attorney, Mr. Kirkpatrick, do you waive time for a continuance?
'DEFENDANT: Your Honor, he has had plenty of time to prepare a defense. I refuse to waive time . . . today is the sixtieth (60) day since the filing of the Information . . . therefore I move to dismiss this case.
'THE COURT: Denied.'
'[Deputy district attorney]: You [defendant] understand that you have the right to a jury trial or the right to a court trial without a jury in these matters?
'Defendant: Yes.'
April 1, 1969: 'Article VI & Amendments to the Constitution guarantees [sic] me a speedy trial.'
April 1, 1969: 'Article VI Amendments to the Constitution of the United States guarantees me the necessities [sic] for my defense.'
April 2, 1969: 'Under Article VI of the Amendments to the United States Constitution the state is compelled to locate witnesses for my defense if I am unable to.'
And, in defendant's personally prepared motion to dismiss filed April 14, 1969, he made reference to the Fifth Amendment (which contains the right against self-incrimination): In answer to the instruction 'State concisely the grounds on which you based your allegation that the imprisonment or detention is illegal,' defendant wrote in: 'Under the speedy trial and due process provisions of Articles V, VI and XIV of the Amendments to the United States Constitution.'