Opinion
Rehearing Granted Dec. 17, 1986.
Opinion on Rehearing ordered not for publication April 2, 1987.
Previously published at 186 Cal.App.3d 1577
John K. Van de Kamp, Atty. Gen., John R. Vance, Jr., Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Frank O. Bell, Jr., State Public Defender, Peter R. Silten, Deputy State Public Defender, San Francisco, for defendant and appellant.
ELKINGTON, Associate Justice.
By the enactment in 1963 of Penal Code section 1389 (hereafter section 1389), California became a party to an interjurisdictional compact, or agreement, with many other jurisdictions, including Nevada and the United States. The compact, section 1389, provides a procedure under which a prisoner of one jurisdiction against whom felony charges are pending in another jurisdiction may, upon "written" demand therefor, be brought to trial on such charges within 180 days, and be thereafter returned to the jurisdiction of his, or her, imprisonment. Upon a state's failure to so try a person who has complied with section 1389, the compact provides for dismissal of that state's criminal action.
Defendant Susan Vincent (Vincent) appeals from a denial of her motion to dismiss a California criminal action for failure to try her within 180 days after she had allegedly complied with section 1389.
On her appeal Vincent relies mainly on her own testimony which she insists should have been believed by the superior court. Completely ignored is the "substantial evidence" rule.
The "test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the [issue is proved] beyond a reasonable doubt...." (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) "Evidence, to be 'substantial' must be of ponderable legal significance ... reasonable in nature, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738; Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.) And, when a trial court's or jury's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the finding of fact, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court or jury. It is of no consequence that the trial court or jury, believing other evidence or drawing different inferences, might have reached a contrary conclusion. (Grainger v. Antoyan (1957) 48 Cal.2d 805, 807, 313 P.2d 848; and see People v. Johnson, supra, 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 288, pp. 300, 301.)
We relate the material factual-procedural context of the case as it reasonably could have been, and presumably was, found true by the superior court.
Vincent was a fugitive from justice. She was sought by the police of Berkeley, California, on charges of grand theft, and by the Federal Bureau of Investigation, for violation of a federal felony statute involving fraud, in Las Vegas, Nevada. While such a fugitive she was arrested for crimes committed in Reno, Nevada. While in the Reno, Nevada, jail, she was visited by a special agent of California's Department of Justice and questioned about the Berkeley, California, offenses. She asked him about "the charges that were potentially pending against her and the order ... they would be dealt with." He "told her she would be tried in the Nevada state court; at the conclusion of that the federal government would have her, and then she would come back to California." She offered no objection or comment. (At her subsequent appearance in the California superior court she testified that "it didn't make any difference" Vincent thereafter pleaded guilty to the Reno, Nevada, charges and was sentenced to the Nevada state prison therefor. She was delivered to the prison July 14, 1983. Soon there were lodged with the Nevada prison authorities warrants for her arrest or "holds," or "detainers," from Berkeley, California, and from the federal court of Nevada in respect of the Las Vegas offense. And each of the jurisdictions asked that Vincent be delivered to it upon completion of her prison sentence. (Each of her several crimes was deemed serious; bail was fixed in Berkeley, California, at $250,000, in Las Vegas, Nevada, at $200,000; and her bail had been set in Reno, Nevada, at $189,000.)
On or about December 6, 1983, Vincent talked with officials of the Nevada state prison about securing a prompt trial in each of the outside jurisdictions. The next day, December 7, 1983, "Miss Vincent signed" the demands for such trials. Thereafter, well within section 1389's 180-day period, she was taken to the Las Vegas federal court "in February of '84 ... to face the charges there." There were many continuances and pretrial hearings in the federal court until, after sentence upon her guilty plea to federal prison, she was returned to Nevada state prison, April 26, 1984. And upon May 18, 1984 she was brought to California by Berkeley police officers "on the California charge."
In the California superior court, Vincent made many pretrial motions, including motions for discovery, until finally, September 17, 1984, she made a motion to dismiss the California action, for the reason that "she has been denied her right to a speedy trial under the Interstate Agreement on Detainers ... as set out in section 1389 of the California Penal Code." A hearing was held, and the motion to dismiss was thereafter denied. In denying the motion to dismiss, the court said that Vincent "wanted the cases to proceed, and they did, in fact, proceed quite promptly with the federal case; it was her own attorney who joined in."
It is significant that in the California superior court Vincent conceded "that the [section 1389 180-day period was] tolled [our emphasis] because of the federal case ... in Las Vegas," and also, that such time was tolled May 30, 1984, to June 18, 1984, and from July 27, 1984 to the date of the hearing on her motion, October 15, 1984, to dismiss the action.
It is further noted that in California on July 27, 1984, Vincent waived her right to a speedy trial, as guaranteed by the 60-day provision of Penal Code section 1382, subdivision 2.
We note, and emphasize, Vincent's expressly stated indifference whether the Las Vegas federal case, or the Berkeley, California, case, first be tried. She testified: "It didn't matter. They could have taken me to California. They could have taken me to Las Vegas. Just to take me somewhere." And she never objected to the federal proceedings on the ground that she "wanted to go to California instead of to Las Vegas."
And, of course, federal law, constitutionally enacted, being the supreme law of the land, the Las Vegas federal case was reasonably the first to be tried. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal §§ 779, 780, pp. 750-751.)
We are unpersuaded by Vincent's superior court argument that she should have first been tried in California. As noted, the place of the first trial "didn't matter" to her. Indeed it inferentially appears that she wanted to avoid the California trial. Upon her arrival in the Nevada state prison she sent an "open letter" to the "Reno federal court" stating, among other things: "Being subjective [sic.] to cruel and unusual punishment, is also a violation of my constitutional rights. I also feel my life could be in danger through the conspiratorial of this institution and District Attorney, Oscar Billing, in San Francisco. I request a federal investigation and charges be filed on Carson City prison staff And surprisingly, Vincent has made no mention in her appellate briefs or on her oral argument, of the federal "hold" or "detainer" against her, or of the Las Vegas criminal proceedings, or of her California stipulations that the 180-day provision of section 1389 be "tolled," or her California "waiver " of a speedy trial.
We here take note of a companion statute, Penal Code section 1381, which provides that California state prisoners with charges pending against them within the state, and who make demand for trial thereon, are entitled to a dismissal of the charges absent the demanded timely trial. Under that section it is held that where such a prisoner makes simultaneous demand for trial on charges pending in two of the state's counties, the Legislature did not intend the "absurd windfall" of dismissal of the charges of the county not chosen first for trial. (People v. Boggs (1985) 166 Cal.App.3d 851, 856, 212 Cal.Rptr. 683.) That rationale and holding are equally applicable here.
"As said in People v. Floyd, 1 Cal.3d 694, 707 [83 Cal.Rptr. 608, 464 P.2d 64] ..., 'Although a criminal defendant may not be deprived of a speedy trial because the prosecution--or the defense--is lazy or indifferent, or because the prosecution seeks to harass the defendant rather than bring him fairly to justice, a criminal defendant may not juggle his constitutional rights in an attempt to evade prosecution.... "We cannot tolerate such bad faith and we are not constitutionally required to do so...." ' " (Teerlink v. Municipal Court (1972) 25 Cal.App.3d 1138, 1143, 102 Cal.Rptr. 505.)
We compute the untolled period following Vincent's Las Vegas proceedings and her release therefrom, at around 75 days, far less than the 180-day period of section 1389.
For each, and all, of the above-stated reasons we discern no error in the California superior court's denial of Vincent's Penal Code section 1389 motion to dismiss.
The judgment is affirmed.
RACANELLI, P.J., and NEWSOM, J., concur.