Opinion
For Opinion on Hearing, see 32 Cal.Rptr. 44, 383 P.2d 452.
Benjamin F. Marlowe, Oakland, for appellant.
Stanley Mosk, Atty. Gen. of the State of Cal., John S. McInerney and John F. Foran, Deputy Attys. Gen., 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 kiling, 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. He also stated that 'Lewis' had a gun, that he expected to get shot himself, and that he heard 'Lewis' say he would kill him. 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 reached for his gun and fired two shots at 'Lewis' who, running, then got behind Mrs. Phillips, where appellant shot at him a third time. Appellant testified he did not intend to shoot his wife or Mrs. Phillips, but 'Lewis' only, and that he shot at 'Lewis' for his, appellant's, own protection; but it is not at all clear from appellant's testimony where he says 'Lewis' was. It would appear from appellant's testimony that 'Lewis' was running at the time of the shooting. Curry (the real name of the occupant of decedent's car was not Lewis, but Curry) testified that he was in the house at the time of the shooting, and that he had no pistol at any time; Mrs. Phillips' daughter testified that Curry was in the house at the time of the shooting. The witness Robnett, a counselor for Alameda County Juvenile Hall, who happened upon the scene, testified that he saw appellant standing in the usual position for shooting, the stock of the rifle against his shoulder, and saw him fire two shots in the direction of a woman running towards the house, and then saw appellant turn to his left and fire a third shot, but because of the position of the automobiles could not see the person at whom the third shot was fired. Defense counsel argued to the jury a combination of theories of self-defense and of provocation.
I. 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 counsel 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 10 days thereafter, and that he had not had his vacation. The judge asked, 'What date do you want?' (a question defense counsel says was asked of the district attorney, but, from the record, may have been asked of both), and the prosecutor 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.' (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. The reporter's transcript shows that this motion was made on the ground of the constitutional right to speedy trial and the provisions of section 686 of the Penal Code, which likewise state the right of the defendant to a speedy trial. No reference was made to section 1382 of the Penal Code. 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 upon 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 county clerk's record had shown, erroneously, that all continuances, including that of August 25, 1960, had been at the request of defendant. (7) November 2, 1960. Trial commenced. Defendant objected to trial because of the delay, stating that defendant had not been given a speedy trial, in violation of his constitutional right, and had not been accorded due process of law. The court caused the record to show that the writ of mandate had been denied, that there was nothing pending, that the man had been demanding trial, and that the court would proceed with the trial.
We shall consider, first, the subject of section 1382 of the Penal Code. This section 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 We believe no adequate record of good cause for the delay was shown by the prosecution. 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.) 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. We believe, nevertheless, that the 10-day limitation was waived by the defendant. In order to obtain dismissal because of failure to bring the case to trial within the 60-day period, objection must be made by the defendant. (Ray v. Superior Court, 208 Cal. 357, 281 P. 391; People v. Lind, 68 Cal.App. 575, 579, 229 P. 990.) The purpose of the objection is to give the court an opportunity to fix an earlier date. (People v. Lind, supra, at p. 579, 229 P. 990; People v. O'Leary, 130 Cal.App.2d 430, 436, 278 P.2d 933; Stewart v. Superior Court, 132 Cal.App.2d 536, 537, 282 P.2d 582.)
In this case, counsel for the defendant did not make an objection sufficiently specific to inform the court that he was standing upon the 10-day limitation contained in the 1959 amendment to section 1382 of the Panal Code. On June 22, 1960, he asked that the trial be set for July 7, 1960, which was beyond the 10-day limitation period. Although defendant wished a date some 11 days earlier than that which the court offered, he did agree, although reluctantly, to the date of August 25, 1960.
On August 25, 1960, objection was made emphatically enough, but, again, without reference to the 10-day limitation. Objection was to trying the case on 'any date,' an objection which was not good because setting within 10 days of August 25 would have complied with the requirements of the statute.
Not only is it necessary that appropriate objection be made, but motion to dismiss must also be made in the trial court so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that proper objection has been made, a futile trial will have been avoided. Motion to dismiss was made, and is discussed more fully below, but it was not made upon the ground of non-compliance with section 1382 of the Penal Code.
We now consider the subject of defendant's constitutional right to speedy trial, which he retained despite waiver of the time limitation. (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, like the statutory one, may be waived by a defendant (People v. Weiss, 50 Cal.2d 535, 558, 327 P.2d 527), and waiver may be made actively or by inaction (People v. Workman, 121 Cal.App.2d 533, 535, 263 P.2d 458). 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 In re Begerow,
II. Errors Claimed By the Defense In the Course of the Trial
Appellant contends that it was error to admit a certain statement which he signed and by which he adopted as his own the terms of an affidavit of Mr. Marlowe, his counsel, in which he, Mr. Marlowe, declared 'that affiant indicated that affiant would be prepared to enter a plea of second degree murder if the same were acceptable to the prosecution.' He also contends that it was misconduct on the part of the district attorney to argue 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. Appellant contends it was error because of section 1192.4 of the Penal Code, and by analogy, because of section 2078 of the Code of Civil Procedure. We do not regard section 2078 of the Code of Civil Procedure as applicable in any way. That section provides that an offer of compromise is not an admission that anything is due, and it refers, obviously, to civil controversies, and not to criminal cases. Section 1192.4 of the Penal Code allows the withdrawal of certain pleas in criminal cases when they are not acceptable to the prosecuting attorney and the court, and provides that such pleas may not be received in evidence. In this case, there was no formal plea of guilty, so that the terms of the section do not literally apply; and if there was any error in admitting the statement of defendant which was connected with his counsel's affidavit, which we do not decide, we find it not to have resulted in a miscarriage of justice. Appellant's defense at the trial was not that he shot his wife because of provocation by her, but that he shot at 'Lewis,' in self-defense or, perhaps, because of provocation by 'Lewis.' If this had been the fact, or if the jury had a reasonable doubt on the subject, he should have been acquitted of any degree of homicide, and, also, he should have been acquitted of the charge of assault with a deadly weapon upon Mrs. Phillips. We have reviewed the transcript carefully and we believe there was no miscarriage of justice. The theory of accidental killing conflicts with that portion of defendant's original statement to the police which related to his firing shots at his wife and to his willingness 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 foundation 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.