Opinion
Rehearing Granted May 11, 1962.
For Opinion on Rehearing see 22 Cal.Rptr. 255.
Benjamin F. Marlowe, Oakland, for appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, John F. Foran, Deputy Attys. Gen., San Francisco, for respondent.
DEVINE, Justice.
Appellant killed his wife by firing two rifle shots, one into her head and the other into her body, while she was running away from him. He was convicted of murder in the first degree, and the jury determined that the penalty would be imprisonment in the state prison for life. Appellant was also convicted of assault with a deadly weapon committed by shooting a friend of his wife, Ida Phillips, immediately following the fatal shooting of Hattie Wilson. The appeal is founded upon asserted errors in the course of the trial and upon denial to defendant of a speedy trial.
The evidence shows a murder which was the culmination of a series of cruelties inflicted by appellant on his wife, a murder which was preceded by threats made at various times by appellant, and which was committed with sufficient time elapsing between the final words of the two parties to the tragedy, whatever those words may have been, and the killing, to bring the case well within the category of first degree.
Appellant gave a statement to the police within a few hours of the shooting. In it, he admitted that he had loaded the gun, aimed it, cocked it and fired it at his fleeing wife. He said, 'I know I did the crime so I am willing to suffer the penalty whether it be gas or what,' and, again, in response to a question about appropriate punishment, replied, 'My belief to take someone's life, I don't have no right to keep my own.' When he was asked the reason for the shooting, he answered that he did not know but that he guessed it was because his wife slammed an automobile door on his arm and because 'Lewis,' who had been seated in deceased's automobile, talked to him the way he did. In the statement, appellant did not admit that he had shot at Mrs. Phillips. He said he did not know whether the third shot had struck anyone.
At the trial, appellant's account of the fatal events was that 'Lewis,' carrying a pistol, approached him; that appellant then Defense counsel argued to the jury a combination of theories of self-defense and of provocation.
Appellant's Contention That Judgment Should Be Reversed Because He Was Denied A Speedy Trial
The information was filed by the district attorney on January 14, 1960, and trial did not commence until November 2, 1960. The steps in the scale of continuances are these: (1) On January 22, 1960, appellant was arraigned, and waived his right to trial within 60 days. His counsel asked for an April date, saying he needed time for preparation, but the court set March 14, 1960, which was changed to March 15, 1960 because defense counsel could not appear. (2) March 15, 1960, April 18, 1960, May 23, 1960, May 24, 1960--on all of these dates defense requested or consented to continuances, with statements on two occasions to the court about pleading to manslaughter or second degree murder if such plea would be accepted. (3) June 22, 1960. Defense counsel asked that trial be set July 7, 1960. The court stated that counsel had actually said that the case would be disposed of by plea, and offered July 18, 1960, but this was unacceptable to defense counsel because he wished to visit his ailing mother in Louisiana, and asked for August 25, 1960, which was granted. (4) August 25, 1960. Counsel for appellant advised the court that he had learned only the day before that the case was not going to trial on August 25, 1960. The judge replied that trials do not commence on Thursdays and that August 25 was a Thursday, and that counsel had been in court long enough to know of this procedure. Counsel was reminded by the court and the district attorney of continuances theretofore granted to him. The deputy district attorney announced that he had to argue a motion for new trial on September 6, 1960, or within ten days thereafter, and that he had not had his vacation. The judge asked him what day he wished, and he replied: 'October 31st for a day certain.' Thereupon, defense counsel said: 'I will object to that day or any day, and you will set it over my objection.' The court set trial for October 31, 1960 for a day certain. (5) October 25, 1960. Defense made a motion to dismiss the information on the ground that defendant had not been accorded a speedy trial, and filed an affidavit of counsel stating that defense had been ready for trial on June 22, 1960 and again on August 25, 1960. Motion was denied. (6) October 31, 1960. Because a petition for writ of mandate to dismiss the information had been filed with the District Court of Appeal, continuance was made until November 2, 1960. This was with limited consent of defense; that is, defendant did not insist on trial while petition for the writ was pending, but all rights were reserved to him. The writ was denied by Division One of this Court, but The requirement of speedy trial in criminal cases appears in three places in the law of this State. The Constitution of California, article I, section 13, clause 1, reads: 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; * * *' Section 686 of the Penal Code repeats, almost literally, the words of the Constitution. Section 1382 of the Penal Code is more specific, and provides, in part, that '[t]he court, unless good cause to the contrary is shown, must order the action to be dismissed' if a defendant whose trial has not been postponed upon his application is not brought to trial within 60 days after the filing of the information. The provisions of section 1382 were waived by defendant, and the many cases in which dismissals were held mandatory under this section do not apply to the case before us. (People v. Bradford, 130 Cal.App.2d 606, 279 P.2d 561.)
However, appellant was entitled by the Constitution of the State and by statute to a speedy trial. He did not consent, but specifically objected, to the continuance from August 25, 1960 to October 31, 1960, a period somewhat in excess of the statutory limit set in section 1382, a limit which does not apply per se, but which gives a measure of what is regarded by the Legislature as the bounds of reasonable time.
We believe no adequate record of good cause for the delay was shown by the prosecution. On August 25, 1960, the deputy district attorney mentioned that he had not had vacation, but there was no affidavit nor even a statement of the time when he expected to take it, or how long it would be, nor was it shown to be necessary that the particular deputy try the case. The motion for new trial in another case is not described; there is no record of the nature of the case or of the difficulty, if any, in handling the motion or of the time needed to prepare for it. If the case before us were one where waiver did not prevent the operation of section 1382, and the motion to dismiss had been made after the statutory period had expired, we are convinced the motion would have had to be granted under the record as it stands because the burden of showing good cause is on the prosecution. (People v. Echols, 125 Cal.App.2d 810, 271 P.2d 595; In re Vacca, 125 Cal.App.2d 751, 271 P.2d 162.)
We believe, however, that the failure of defense counsel to move for dismissal until six days before trial was to commence, or to demand a trial date earlier than that set by the court, precludes his having the judgment reversed because of the denial of that motion. The statutory bar of section 1382 having been lifted at defendant's own insistence, he no longer was possessed of the right to mandatory dismissal, which actually is a challenge to the jurisdiction of the court.
He did retain the constitutional and statutory right to a speedy trial, and the right to have further delay justified on grounds of reasonableness and good cause. (People v. Tahtinen, 50 Cal.2d 127, 131-132, 323 P.2d 442; In re Lopez, 39 Cal.2d 118, 120, 245 P.2d 1.) This right may be waived (People v. Weiss, 50 Cal.2d 535, 558, 327 P.2d 527), and waiver may be made directly or by inaction (People v. Workman, 121 Cal.App.2d 533, 535, 263 P.2d 458.) In cases where section 1382 applies, waiver is prevented by objection to a date beyond the statutory limit, which calls the court's attention to the defendant's insistence on trial within the statutory time, so that either the court may arrange for trial within that time or the objection will be the forerunner for motion to dismiss. The objection is prerequisite to the motion (People v. Lind, 68 Cal.App. 575, 579, 229 P. 990; People v. Tenedor, 107 Cal.App.2d 581, 583, 237 P.2d 679), and the motion, too, People v. Martinez,
People v. Weiss,Therefore, we must consider whether the action of defense counsel sufficed to preserve for appeal from the judgment, the denial of a motion to dismiss, as such preservation is recognized by our law. (Matter of Ford, 160 Cal. 334, 348, 116 P. 757, 35 L.R.A.N.S., 882; People v. Angelopoulos, 30 Cal.App.2d 538, 545.) What constitutes a speedy trial must be determined in the light of all the circumstances (People v. Godlewski, 22 Cal.2d 677, 682, 140 P.2d 381), and we take it that this rule reasonably includes the procedural steps taken by the defense. The burden of showing good cause for delay when appropriate challenge is made rests on the prosecution, but the burden of making the appropriate challenge we deem to be upon the defendant. This is the rule in 1382 cases, as related above, and it should apply to cases outside the 1382 limitation. As late as May 24, 1960, defense counsel told the court of an offer made to the district attorney to plead to second degree murder, and consented freely to the June 22, 1960 date. On June 22, 1960, although counsel was not given the July 7, 1960 date he asked for, when the district attorney announced other cases had to go to trial, he was offered July 18, and it was only his personal affair, however compelling and unavoidable it may have been, that brought about the date of August 25. On August 25, when the court asked, 'What date do you want?' (a question defense counsel says was asked of the district attorney, but, from the record, it may have been asked of both), the prosecutor replied, 'October 31st for a day certain.' Defense counsel did not ask for an earlier date, but said, 'I will object to that day or any day, and you will set it over my objection.' It will be observed that counsel's objection was to any date. His position, apparently, was that the time for trial had gone by for any continuance at all, an untenable position in view of all that had gone before. If he wished a date earlier than October 31, 1960, he did not say so. He made no motion to dismiss until October 25, 1960.
Had a motion to dismiss been made on August 25, 1960, or shortly thereafter, it would have been possible for the court to advance the date. Also, it would have shown clearly that defendant actually did insist on dismissal of the pending information. Such dismissal would not necessarily, and, indeed, probably would not have been at all, an advantage to defendant. The California rule, unlike that in some states, is that dismissal for delay in a felony case does not bar a subsequent prosecution (In re Begerow, 136 Cal. 293, 68 P. 773, 56 L.R.A. 528; People v. Godlewski, 22 Cal.2d 677, 140 P.2d 381; see cases in 50 A.L.R.2d 943); and in such a case as this, murder, surely a second information would have been filed. If defendant desired the dismissal, he should have made timely motion for it. When he did make the motion, the trial was at hand, and substantial advancing of the trial date could not be done.
We are the more ready to hold defendant to the necessity for reasonably express demand on August 25, 1960 for early trial or for dismissal because of the continuances theretofore allowed to him; because dismissal probably would have caused only more delay by occasioning a new information; because the verdict was a fair one; and because the trial lasted five or six weeks. Appellant's Claims of Error and Misconduct During Trial
It is contended by appellant that the prosecution was guilty of prejudicial misconduct, and the court was in error, in this: that the prosecutor offered in evidence, and the court admitted, an affidavit made by appellant to the effect that he had offered to plead guilty to second degree murder. The affidavit had been executed by appellant in connection with his application for writ of mandate to dismiss, as mentioned above. The district attorney argued to the jury that if appellant were willing to plead to second degree, actually he must have been guilty of first degree because an accused will always offer to plead to something less than that of which he may be convicted. Misconduct was cited again at this point.
It is well established that an express offer by an accused to plead guilty to a lesser offense than that charged is admissible as constituting a declaration against interest or an implied admission of consciousness of guilt. (People v. Carroll, 92 Cal. 568, 28 P. 600; People v. Ivy, 163 Cal.App.2d 436, 329 P.2d 505; People v. Carr, 163 Cal.App.2d 568, 576, 329 P.2d 746; People v. Cooper, 81 Cal.App.2d 110, 183 P.2d 67; People v. Boyd, 67 Cal.App. 292, 227 P. 783.) The proffered plea of guilty to second degree murder was particularly relevant in this case as rebutting defendant's contentions of self defense and of such provocation as might reduce the offense to manslaughter. Moreover, appellant, in his original statement to the police, had made admissions as injurious as the offered plea, and perhaps more damaging.
It is contended by appellant that the district attorney was guilty of misconduct in proceeding to cross-examine him by using the statement to the police, before laying the fundation that it was voluntary. Although one or two questions were asked before the foundation was laid, upon objection the court promptly ordered discontinuance of use of the statement until a very thorough voir dire on its voluntary character was completed.
A final incident of claimed misconduct occurred during the cross-examination of appellant wherein he testified that when he was about to give his statement, an officer told him that if he cooperated with the police, 'things would go much easier' for him. The district attorney said, 'I thought you said a few minutes ago they did not make any promises to you,' and thereupon misconduct was cited. It is defendant's position that the statement of the district attorney was not correct. However, counsel for defense did not point out to the court at the time his contention of misquotation, but simply cited misconduct; and, besides, a few moments before the incident in question, when appellant had been asked if the police had promised they would not charge him with a crime if he gave them a statement, he replied, 'They didn't mention anything they was going to charge me.' Probably it was this that the district attorney had in mind. In any event, the matter could have been made clear if defense counsel had made a specific objection and asked for a direction to the jury, instead of making a broad charge of misconduct.
The judgment is affirmed.
DRAPER, P.J., and SALSMAN, J., concur.