Greenberger v. Superior Court

JOHNSON, J., Concurring and Dissenting.

I concur in the majority’s conclusion that good cause existed to continue petitioner Karen DeLayne Greenberger’s (petitioner) trial. However, unlike the majority, I would conclude the good cause did not extend to permit the trial court to continue petitioner’s trial for an additional half-year thereby forcing her to remain in custody without the benefit of either bail or a speedy adjudication of the allegations against her for almost two years.

I begin my discussion with an explanation of why I believe good cause existed here. I do so because I believe the majority’s discussion of this issue *508fails to adequately explain the competing interests a court must weigh when a codefendant seeks to continue a trial date beyond the statutory period.

The Statutory Preference for Joint Trials, Under Certain Circumstances, May Constitute Good Cause to Continue a Trial Beyond the Statutory Period.

Our state Constitution guarantees criminal defendants the right to a speedy trial. (Cal.Const., art. I, § 15.) The purpose underlying this right to a speedy trial is “to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers.” (In re Begerow (1901) 133 Cal. 349, 355 [65 P. 828]; People v. Johnson (1980) 26 Cal.3d 557, 571 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 890 [182 Cal.Rptr. 703].)

Penal Code section 1382 interprets this constitutional right by providing a defendant accused of a felony is entitled to dismissal of the charges against him if he is not brought to trial within 60 days of the filing of the information or, if the defendant previously consented to a trial date beyond the 60-day period, within 10 days from the date set for trial, unless there is a showing of good cause. (Pen. Code, § 1382, subd. (b); Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776 [200 Cal.Rptr. 916, 677 P.2d 1206]; People v. Johnson, supra, 26 Cal.3d at p. 561.) If a defendant raises the issue of a speedy trial before the trial has commenced, the defendant will be presumed to have been prejudiced by the lack of a speedy trial unless the prosecution has established good cause. (People v. Clark (1965) 62 Cal.2d 870, 882 [44 Cal.Rptr. 784, 402 P.2d 856].)

What constitutes good cause is a matter within the trial court’s discretion. (People v. Johnson, supra, 26 Cal.3d at p. 570.) Although good cause has not been defined, examples of good cause include delay caused by the defendant’s conduct, delay for the defendant’s benefit, delay arising from unforeseen circumstances including the unavailability of a witness, of a codefendant, of a judge or of defense counsel. (See People v. Johnson, supra, 26 Cal.3d at p. 570 and fns. 13-15; Townsend v. Superior Court (1975) 15 Cal.3d 774, 783-784 [126 Cal.Rptr. 251, 543 P.2d 619]; Batey v. Superior Court (1977) 71 Cal.App.3d 952, 956-957 [139 Cal.Rptr. 689].) However, good cause does not arise if the delay is attributable to the prosecution or the lack of judicial resources. (People v. Johnson, supra, 26 Cal. 3d at p. 571; Arreola v. Municipal Court (1983) 139 Cal.App.3d 108, 113 [188 Cal.Rptr. 529].)

Two of petitioner’s codefendants presented evidence in camera to the trial court establishing their need to continue the trial an additional seven *509months in order to properly prepare. Based upon this evidence, and what the trial court concluded was merely speculation concerning any prejudice to petitioner, the trial was continued until July 1990.

Petitioner, while conceding good cause existed to continue her codefendants’ trial, argues the preference for trying her jointly with the codefendants did not constitute good cause to continue her trial. This is incorrect.

Section 1098 provides in part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.”

This statutory preference is not absolute. When the mandate for joint trials conflicts with the defendant’s right to a speedy trial, a trial court must exercise its discretion to determine which policy will prevail based upon its evaluation of the various policy and pragmatic considerations. (Sanchez v. Superior Court, supra, 131 Cal.App.3d at p. 891; see Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 646-647 [211 Cal.Rptr. 649]; People v. Powell (1974) 40 Cal.App.3d 107, 152 [115 Cal.Rptr. 109].) “Thus, neither a defendant’s constitutional right to trial within the 60-day period nor the mandate for joint trial are absolute, but are subject to the discretion of the trial court in evaluation of conflicting policy and pragmatic considerations.” (Sanchez v. Superior Court, supra, 131 Cal.App.3d at p. 891.)1

A trial court abuses its discretion in permitting the preference for joint trials to prevail where “the insistence on joint trial was not in good faith, or that it was solely for the purpose of obtaining an otherwise illegal delay, to take unfair advantage of the defendants, or was not reasonably predicated upon the purpose and intent of the statute which grants the right to try the defendants jointly.” (People v. Clark, supra, 62 Cal.2d at p. 883.)

In Ferenz v. Superior Court (1942) 53 Cal.App.2d 639 [128 P.2d 48], the Court of Appeal held the trial court properly continued the defendant’s trial beyond section 1382’s time period so he could be jointly tried with his codefendants. In finding good cause to continue the trial beyond the *510statutory period, the court noted a joint trial was preferable because, inter alia, of the length of the trial, the necessity of procuring a large number of witnesses, and the inconvenience and expense which would result from a severance. (Id. at p. 643.)

Here, the trial on the Radin murder has been estimated to take three months with jury voir dire to take up to an additional two months. The preliminary hearing transcript, which was reviewed by the trial court, indicates the prosecution called approximately 21 witnesses, including witnesses to which their testimony was stipulated, to testify concerning the common counts against all 3 defendants. One may fairly assume a similar number will be called at trial. Severance is likely to result in many of these witnesses being required to testify twice. Under these facts, there is a strong policy preference to try the defendants jointly.2

Further, unlike those cases where a defendant or codefendant moved for a continuance because the court-appointed counsel had calendaring conflicts, the codefendants here sought their continuance because of their need to conduct further investigations and to prepare for trial. (Compare People v. Cooper (1989) 216 Cal.App.3d 830, 834 [265 Cal.Rptr. 58]; People v. Escarcega, supra, 186 Cal.App.3d at p. 386; Sanchez v. Superior Court, supra, 131 Cal.App.3d at p. 890.) Thus, the need for a continuance cannot be attributed to the oppression or neglect of the court or the state.

In this regard, our facts are most similar to those in Hollis v. Superior Court, supra, 165 Cal.App.3d 642. There, a codefendant’s appointed counsel moved to continue the trial because he required additional time to adequately prepare. (Id. at p. 646.) As the court noted, “[c]ounsel’s need for more than 60 days to complete preparations for a murder defense is certainly not uncommon and, standing alone, does not implicate the state in a failure to afford adequate defense resources.” (Id. at p. 646.)3 The court *511went on to hold there was good cause to continue the trial as to all the defendants.

It is clear from the record, the trial court balanced the various factors favoring a joint trial against petitioner’s right to be brought to trial within the statutory period when granting the motion to continue. These factors include the length and complexity of the trial, the number of witnesses to be called, and the codefendants’ need to adequately prepare for trial. Under these facts, I cannot say the trial court abused its discretion in concluding good cause existed to continue the trial beyond the January 8 trial date.

However, as I explain below, although the trial court had the discretion to continue the trial, I would hold the good cause found here did not warrant a six-month continuance.

The Trial Court Abused Its Discretion in Continuing Petitioner’s Trial for Over Six Months.

My review of the relevant authorities indicates the longest continuance permitted under similar circumstances was 40 days from the trial date. (Hollis v. Superior Court, supra, 165 Cal.App.3d at p. 644; see Ferenz v. Superior Court, supra, 53 Cal.App.3d at p. 641. [continuance of 22 days beyond statutory period held permissible]; People v. Lanigan (1943) 22 Cal.2d 569, 579-580 [140 P.2d 24, 148 A.L.R. 176] [good cause to continuance of approximately 5 weeks beyond the statutory period]; Batey v. Superior Court, supra, 71 Cal.App.3d at pp. 956-957 [good cause found for continuance of 3 days beyond the statutory period]; compare People v. Johnson, supra, 26 Cal.3d at p. 565 [no good cause for continuances of approximately 12 weeks beyond the statutory period]; People v. Cooper, supra, 216 Cal.App.3d at p. 833 [no good cause for continuance of 1 week beyond statutory period]; People v. Escarcega, supra, 186 Cal.App.3d at p. 386 [no good cause for continuance of approximately 2 1/2 weeks beyond the statutory period]; Sanchez v. Superior Court, supra, 131 Cal.App.3d at pp. 887-888 [no good cause for continuance of approximately 20 days beyond the statutory period].) Our research discloses no case even roughly analogous to ours where a longer continuance was permitted.

The only case which, at first blush, arguably could justify the prolonged continuance here is People v. Powell, supra, 40 Cal.App.3d 107, a case relied upon by the majority. There, the statutory period to bring the defendant to trial ended on October 31, 1967, and the defendant was not brought to trial until April 7, 1969. (Id. at p. 145.) Although the defendant’s claim that he was denied a speedy trial was “rooted in his assumption that he had a right to proceed in propria persona. . . ,” and resulted largely from his court-*512appointed counsel’s need for additional time to prepare for trial, an unknown part of the delay was attributable to the presentation, consideration and ruling on the defendant’s motions to sever his trial from the codefendant. (Id. at pp. 147, 151, 152.) However, a careful review of the procedural facts illustrates any delay attributed to the decision to try the defendants jointly was less than the delay here.

In Powell, the trials of the two defendants were ultimately severed sometime prior to March 27, 1968, so any delay beyond this date is not attributable to the preference for joint trials. (40 Cal.App.3d at pp. 149-150.) Prior to this date, the trial court granted continuances of approximately two and one-half months to permit the defendant’s attorney to prepare. (Id. at pp. 148-149.) The trial was continued for an additional month because of legitimate conflicts with appointed counsel’s calendar or pretrial motions. (Id. at p. 148.) Thus, at most, any delay attributable to the joint trial could not be more than three months, far less than the continuance granted here.

In our case, the section 1382 statutory period expired on January 18, 1990, 10 days following the consented trial date. The trial court continued the trial for over half a year to July 23. I find this to be excessive.

The disadvantages experienced by an incarcerated defendant who cannot obtain pretrial release are serious. As the U.S. Supreme Court noted, “[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. . . . Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.” (Barker v. Wingo (1972) 407 U.S. 514, 532-533 [33 L.Ed.2d 101, 118, 92 S.Ct. 2182], fn. omitted; accord People v. Johnson, supra, 26 Cal.3d at p. 569, fn. 11.)

Here, Greenberger has already suffered from 16 months of pretrial detention. To permit the detention to continue until July of this year without being brought to trial would, be a denial of her right to a speedy trial.

The majority cites two federal cases to support their conclusion that a six-month delay is permissible. These cases are, of course, inapposite since they only construe the federal right to a speedy trial and we are concerned with a separate state constitutional right which, through Penal Code section 1382, has already set an initial 60-day period as the maximum time within which a defendant must be brought to trial.

*513Moreover, neither case resembles the facts here. In United States v. Ewell (1966) 383 U.S. 116 [15 L.Ed.2d 627, 86 S.Ct. 773], the two defendants pleaded guilty less than one week after they were charged. (Id. at p. 118 [15 L.Ed.2d at pp. 629-630].) They were sentenced to prison. Approximately seven months later the Court of Appeals held the statute under which the defendants were charged was defective if certain procedural requirements were not met. Based upon this case, the defendants successfully moved to vacate their convictions.

The defendants were reindicted in March and June of 1964. (383 U.S. at p. 119 [15 L.Ed.2d at p. 630].) They successfully moved to dismiss the indictments claiming they were denied their right to a speedy trial. The Supreme Court reversed noting the defendants were promptly indicted and convicted after their initial arrests in 1962 and immediately rearrested and reindicted in due course later. (Id. at pp. 120-121 [15 L.Ed.2d at p. 631].) The Supreme Court held the substantial interval between the original and subsequent indictments did not violate the federal right to a speedy trial. (Id. at p. 121 [15 L.Ed.2d at p. 631].)

Barker v. Wingo, supra, 407 U.S. 514, is equally inapposite. As the U.S. Supreme Court recognized in finding the defendant was not denied the right to a speedy trial, there were two factors which militated against dismissal. First, the defendant suffered little prejudice since he was able to make bail and, thus, was only incarcerated prior to trial for 10 months. (Id. at p. 534 [33 L.Ed.2d at p. 119].) In contrast here, petitioner has already been in custody for 16 months and, with the denial of this petition, will remain in custody without a trial for an additional 4 months.

Second, the defendant in Barker did not want a speedy trial. (407 U.S. 514, 534 [33 L.Ed.2d at p. 119].) The defendant never objected to any of the continuances sought by the prosecution, thereby attempting to take advantage of the delay by later arguing denial of a speedy trial. (Id. at p. 535 [33 L.Ed.2d at p. 119].) Here, petitioner has adamantly sought a trial commencing January 8, 1990.

The majority claims there is no magical calipers by which to measure when a defendant is denied a speedy trial. Yet it strongly suggests both to the parties and to the trial court that any delay beyond the July 23 date may violate petitioner’s right to a speedy trial. I fail to understand how the majority is able to conclude the outside limit for continuing the trial is six months but not one year or ten years. Under its analysis, there appears to be no outside limit. Nonetheless, even the majority is willing to admit such a limit exists.

I would conclude that limit is much smaller in light of the reasons for continuing the trial. Based upon those cases where continuances involving *514similar circumstances have been upheld, I would hold the trial court properly could have continued the trial for as long as 60 days. Since any further delay that has taken place thus far in this case is attributable to the filing of and deliberations on the extraordinary writ petition, I would hold dismissal is not required provided petitioner’s action is severed and trial is commenced no later than April 12, 1990. (Cf. Muller v. Justice's Court (1954) 129 Cal.App.2d 570, 572 [277 P.2d 866]; Matthews v. Superior Court (1973) 35 Cal.App.3d 589, 595 [110 Cal.Rptr. 843].)4

The majority claims a severance would “only” benefit petitioner two months while it would drain resources and force witnesses to testify more than once.5 (Actually petitioner’s trial would start over three months earlier were she allowed a severance so the benefit is three months not two.) I hasten to point out the time that would be saved by severing Petitioner’s trial exceeds the 60 days California law sets as the outside constitutional limit within which a defendant must be brought to trial. So 60 days, or in this case 103 days, is a substantial period of time in the eyes of the California Constitution. To put it another way, what the majority is adding to petitioner’s delay is over one and one-half times the sixty days California law initially allotted the prosecution to bring her to trial in the first place. There is no way to minimize such a constitutionally significant burden without trivializing the constitutional right itself.

The majority’s argument ignores the simple fact that a defendant is guaranteed a right to a speedy trial under our state Constitution and we may not wholly ignore this right simply to save a few dollars or avoid inconveniencing potential witnesses. As the United States Supreme Court observed over 20 years ago, “[T]he short and perhaps the best answer to any objection based upon expense was given by the Supreme Court of Wisconsin .... 'We will not put a price tag upon constitutional rights' (Citation omitted.)” (Smith v. Hooey (1969) 393 U.S. 374, 380, fn. 11 [21 L.Ed.2d 607, 613, 89 S.Ct. 575], italics added.) Yet this is exactly what the majority does in the instant case. It sacrifices petitioner’s constitutional rights on the altar of cost and convenience.

As I remarked previously, by denying this petition the majority will force petitioner into a total of 20 months of pretrial incarceration before her guilt or innocence may be determined. The majority is sanguine with this result; I *515am not. Justice is not served when it is so cavalierly delayed. I would grant the petition and order a severance of petitioner’s trial.

Petitioner’s application for review by the Supreme Court was denied July 27, 1990. Mosk, J., was of the opinion that the application should be granted.

In dictum, the court in People v. Escarcega (1986) 186 Cal.App.3d 379, 386, footnote 4 [230 Cal.Rptr. 638], citing Sanchez v. Superior Court, supra, stated “[t]he preference for a joint trial of jointly charged defendants does not constitute good cause to delay one defendant’s trial beyond the time period set forth in Penal Code section 1382, subdivision 2.” This is incorrect for two reasons. First, as we discussed above, the court in Sanchez v. Superior Court, supra, 131 Cal.App.3d at page 891, recognized the preference for joint trials may, under the proper circumstances, outweigh a defendant’s right to a speedy trial. The court went on to hold that under the facts presented there, the policy favoring joint trials did not prevail. (Ibid.) Second, the Supreme Court has held the policy favoring a joint trial may constitute good cause. (People v. Clark, supra, 62 Cal.2d at p. 883.)

The People filed a declaration with their return setting forth several reasons why the defendants should be tried jointly. Among these reasons, the People claim many of their witnesses already must testify twice because the court severed counts concerning the Mincher murder from the trial on the Radin murder. The People also claim they intend to call more witnesses than were called to testify at the preliminary hearing. The majority has apparently relied upon this declaration when they remarked on the number of times witnesses may be called if the severance was permitted. This is improper. These statements were not before the trial court and, therefore, could not have been considered when the trial court exercised its discretion in finding good cause. (See Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 69-70 [65 Cal.Rptr. 353].)

Hollis is not identical in all respects with our case since in Hollis, the defendant disclaimed any interest in severing his trial from his codefendants. (Id. at pp. 646-647.) This factual difference does not affect my conclusion that the state is not implicated in the codefendants’ need for further preparation.

At oral argument, both parties agreed this court was empowered to sever petitioner’s trial rather than either denying the petition or ordering the trial court to dismiss the information.

Petitioner’s counsel stated at oral argument that he could and would be ready to try the case within three weeks after any severance this court should grant, that is, by mid-April. The prosecution had indicated it was ready to start the trial as early as January 1990.