People v. MacDonald

27 Cal. App. 3d 508, 103 Cal. Rptr. 726, 1972 Cal. App. LEXIS 867

• Court: California Court of Appeal
• Decided: August 28, 1972
• Docket: Crim. 20645
• Status: Published

Opinions

Opinion

THE COURT.

Defendants MacDonald, Tender, and Williams filed demurrers to a multicount indictment and motions to dismiss the indictment upon the theory that their constitutional rights to a speedy trial (U.S. Const., Amend. VI; Klopfer v. North Carolina (1967) 386 U.S. 213 [18 L.Ed.2d 1, 87 S.Ct. 988]) were violated by the failure of the California-authorities to press immediately for their extradition and trial in California upon their being apprised that defendants were serving sentences in the Maryland penitentiary for convictions of felonies¹ committed in Maryland. A pretrial evidentiary hearing was held in the superior court, following which that court made formal findings of fact accompanied by a minute order which overruled the demurrers and denied the motions to dismiss. Thereafter, defendants entered their respective pleas of guilty to count X of the indictment which charged them with having committed a robbery (Pen. Code, § 211) in Los Angeles County on March 15, 1965.² Sentences to state prison to run concurrent with those of Maryland were imposed and defendants returned to Maryland State Prison. They appeal from their respective judgments of conviction (Pen. Code, §§ 1237, subd. 1, and 1237.5) seeking a review of the order overruling the demurrers and denying their motions to dismiss.

The facts are as stated by Justice Stephens in his dissenting opinion. We add, however, that although the trial court made formal findings of fact they were not accompanied by conclusions of law except as set forth in a minute order (dated August 7, 1970) allowing certain amendments to its findings and reading in part as follows: “The amendments are made by interlineation by the Court. Objections to findings as amended are overruled. Demurrer and motion to dismiss are argued. Demurrer overruled. Motion to dismiss denied. The Court finds no denial of a speedy trial on the part of the prosecution. The Court makes no finding as to prejudice.” (Italics added.)

Pending defendants’ appeals in this court, the United States Supreme Court decided the case of Barker v. Wingo, 407 U.S. 514 [33 L.Ed.2d 101, 92 S.Ct. 2182] on June 22, 1972. At the very threshold of its opinion the court stated that no previous case in that court had “attempted to set out the criteria by which the speedy trial right is to be judged. . . . This case compels us to make such an attempt.” (407 U.S. 514, 516 [33 L.Ed.2d 101, 109, 92 S.Ct. 2182, 2185].) Without going into all of the ramified considerations to¡ be found in the opinion, suffice it for our purposes to state here that the court enumerated four principal factors to be considered: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (407 U.S. 514, 530 [33 L.Ed.2d 101, 117, 92 S.Ct. 2182, 2192].) Of the various types of prejudice, the court stated, “Of these, the most serious is the last [impairment of defense], because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” (407 U.S. 514, 532 [33 L.Ed.2d 101, 118, 92 S.Ct. 2182, 2193].) On this issue, the trial court’s minute order stated, “The Court makes no finding as to prejudice.” From the context, it would appear to have reference to prejudice which concerns impairment in the ability of the defendants to adequately defend themselves of the charges.

Barker does not deal with the situation where the defendant is undergoing penal servitude in a foreign jurisdiction. The latest United States Supreme Court case dealing with this interstate situation is Smith v. Hooey (1969) 393 U.S. 374 [21 L.Ed.2d 607, 89 S.Ct. 575] where the Texas authorities refused to bring the defendant, then incarcerated in the federal penitentiary in Kansas, to trial despite repeated demands by him over a six-year period. Nevertheless, the factor of demand by the defendant which is an essential factor in Smith and in statutes like our Penal Code section 1389 now should be read in the light of Barker, which sets forth the guidelines for properly weighting this factor in determining the speedy trial issue. Should the corollary issue of right to counsel in connection with Penal Code section 1389 proceedings be raised in the new hearing, the trial court should consider the case of Kirby v. Illinois (June 7, 1972) 406 U.S. 682, 688 [32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1882] also decided after the previous hearing.

We cannot fault the trial court in this case for what it did without the criteria by which the issue is to be decided, which were not pronounced until the rendition of Barker. (Cf. In re Tahl (1969) 1 Cal.3d 122, 133-135 [81 Cal.Rptr. 577, 460 P.2d 449], cert. den. 398 U.S. 911 [26 L.Ed.2d 72, 90 S.Ct. 1708]; People v. De Santiago (1969) 71 Cal.2d 18, 23 [76 Cal.Rptr. 809, 453 P.2d 353].) Nevertheless, Barker is certainly applicable to this case which was pending appeal when Barker was handed down. The findings of the trial court in the instant case are incomplete in the light of the Barker criteria.

We, therefore, remand the cause to the superior court with directions to hold a new post-judgment evidentiary hearing limited to the speedy trial issue in the light of Barker. (People v. Berutko (1969) 71 Cal.2d 84, 89-90 [77 Cal.Rptr. 217, 453 P.2d 721]; Pen. Code, § 1260.) Should the trial court conclude that defendants’ Sixth Amendment rights to a speedy trial were violated, then it should further order the judgments and guilty pleas vacated and dismiss count X. Should the trial court find to the contrary, namely, that the speedy trial right was not violated, such finding should be accompanied by a further order that the judgments of conviction are to stand and that vacation of the judgments is denied so that defendants may seek a review of the ruling made upon the new post-judgment evidentiary hearing (Pen. Code, § 1237, subd. 2). We do not foreclose the power of the district attorney to forego such a new hearing and to consent to a vacation of the judgments and guilty pleas and dismissal of count X if in the exercise of his discretion the interests of the People would be best promoted by such a course of action.³ This observation is made merely to clarify that this possibility is not foreclosed and it is not intended to suggest that this alternative should be selected.

The judgments of conviction appealed from by defendants MacDonald, Tendear, and Williams are ordered to stand, but the causes are remanded to the superior court for further proceedings consistent with the views set forth in the foregoing opinion.⁴

1 The joint opening brief filed by defendants MacDonald and Williams states defendants were apprehended “on similar charges [to those involved in this instant case] originating in . . . Maryland.”

2 The count also contained an allegation that they were armed with a deadly weapon at the time of the commission of the offense, but no disposition was made as to this allegation. The other counts of the indictment were dismissed upon the People’s motion in the interests of justice.

3 In addition to the cost of bringing defendants before the California court, the trial court in the prior hearing ordered the payment of round trip air transportation expenses of two witnesses from Washington, D.C. and Baltimore.

4 The remand directing a new post-judgment hearing, in lieu of vacating the judgment with directions, is admittedly new, but we believe it to' be authorized by the last sentence of Penal Code section 1260: It has the merit of not. disturbing the records as to the judgments'of conviction unless legal reason for doing so is established, thus reducing the need for correction of records by law enforcement authorities. It also avoids the ambiguities of Penal Code section 2900.5, subdivision (b), and assures defendants that they will receive credit for concurrent time on the judgments in the event the judgments are not set aside.