People v. Flores

Defendant appeals from a judgment convicting him of two counts of armed robbery (Pen. Code, § 211). He contends that the court erred in rejecting his defenses of prior conviction and double jeopardy in respect of count I and that his conviction on count III violated Ms constitutional rights to a speedy trial and denied him due process. The evidence of defendant’s guilt upon the counts of which he was convicted was clearly adequate, and the defendant does not contend otherwise. All of the questions presented on appeal grow out of a tangle of procedural problems.

On May 16, 1966, a complaint was filed charging defendant with three counts of armed robbery: Count I charged him with robbing Robert P. Lewin on May 10, 1966; count II charged him with robbing Brenda Hunt on May 5, 1966; and count III charged him with robbing Gladys Pearl Lytle and Dorothy Fern Johnson on April 27, 1966. On May 12, 1966, defendant was arraigned in the municipal court, and he appeared with a public defender. At the commencement of the

On September 7 in superior court defendant was rearraigned, pleaded not guilty, and denied the priors. Trial was continued to October 21, 1966. Defendant’s motion to appear in propria persona was denied. The cause was advanced to October 17, at which date the court accepted defendant’s additional pleas of “former conviction” and “once in jeopardy.” Reporters’ transcripts of the proceedings of May 16, 17, 20 and 26, 1966, and August 10, 1966, were ordered, and the cause was continued to December 19, 1966, at the request of defendant’s counsel, to which defendant assented. The transcripts had not been prepared by the 19th of December, and the prosecution requested the matter be further continued. Defense counsel expressly refused to consent to waive time; the court continued the matter to December 27, 1966. On the latter date defense counsel moved to dismiss the pending information on the ground of double jeopardy with respect to counts I and II (the third count had been dismissed on May 12, 1966), moved to dismiss the remaining counts of the information on the theory that those counts are “barred” by Kellett v. Superior Court, 63 Cal.2d 822 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ], and upon the further ground that defendant was denied his right to be sentenced on the counts to which he pleaded guilty within 21 days. The court denied the motions. The prosecuting attorney requested a further continuance to produce the witnesses, and defense counsel moved to dismiss on the ground that the defendant had not been afforded a speedy trial. The motion was denied, and the court set the cause for trial on January 5, 1967. On December 28 the court granted defense counsel’s motion to advance the cause for the purpose of trial to that date. The defendant and all counsel waived jury trial as to counts I and III, and counsel for both parties stipulated to submit the cause on the transcript of the

Defense counsel reported his client’s wish to be returned to the California Rehabilitation Center, and defense counsel requested a referral of the defendant to department 95 for that purpose. The request was denied. Defense counsel waived arraignment for sentence, and the court sentenced defendant to state prison for the term prescribed by law on counts I and III, the sentences to run concurrently. The prosecuting attorney’s motion to dismiss the remaining counts of the information was granted.

Defendant appeals from the judgment of conviction.

Guilty Pleas Invalid

Article I, section 8, of the California Constitution, and section 859a of the Penal Code preclude entry of a guilty plea before a magistrate when the accused is not represented by counsel. (In re Van Brunt (1966) 242 Cal.App.2d 96 , 104 [ 51 Cal.Rptr. 136 ].) Section 860 of the Penal Code permits a waiver of preliminary examination on a felony charge only if the defendant is then represented by counsel, or if defendant, with counsel, has theretofore pleaded guilty in accordance with the provisions of section 859a of the Penal Code. The magistrate, in violation of the commands of the cited constitutional and statutory provisions, permitted the defendant to discharge his lawyer and accepted his plea of guilty to counts I and II of the original information. The guilty plea under these circumstances was a nullity.

It is unnecessary for us to discuss appellant's contentions that the court erred in rejecting his pleas of “former conviction” and “double jeopardy” because he never effectively pleaded guilty to the charges in the original information.

Denial of Speedy Trial

Defendant contends that he was denied both his constitutional and statutory rights to a speedy trial on each count of which he was convicted. His contention cannot be

Defendant’s trial on count III was speedy enough to comply with both the constitutional guarantee (California Const., art. I, § 13) and the 60-day provision of section 1382, subdivision 2, of the Penal Code.

Count III of the information was a repetition of count III of the original complaint. Count III had been effectively dismissed by the prosecution at the time defendant entered his initial invalid plea. An order for dismissal of a felony count is not a bar to other prosecution for the same offense. (Pen. Code, § 1387.) Since the statute of limitations had not run on count III, there was no impediment to the prosecution’s refiling in the information the dismissed charge of count III of the complaint.

From the date upon which count III was refiled on September 7, 1966, to the date of trial, 112 days elapsed. However, there must be deducted from those days 63 days (October 17 to December 19) attributable to a continuance upon defense counsel’s motion, with the consent of the defendant, leaving a balance of 49 days, a time well within the 60-day limit. (People v. Harrison (1960) 182 Cal.App.2d 758 , 759 [ 6 Cal.Rptr. 345 ].)

Defendant’s argument that count III should have been dismissed because it was not filed within 15 days after the defendant had been held to answer pursuant to the provisions of section 1382, subdivision 1, of the Penal Code is not well taken. The defendant was not held to answer upon count III until after the preliminary hearing upon the newly filed charges held August 22-24,1966.

Defendant’s real complaint is that he was obliged to do dead time during the period from his initial invalid guilty pleas to the time of trial upon the information. Certainly no one can commend the course of procedure which was followed in this case. We cannot say, however, that the procedural morass which resulted in defendant’s retention in custody before his trial on count III amounted to reversible error; however, the Adult Authority shall take into account the time defendant was retained in custody from May 12, 1966, the date of his initial arraignment, to August 22, 1966, the date of his preliminary hearing upon the information.

The proceedings against the defendant on count I stand on a very different footing from those on count III. Count I charges were pending against defendant from his arraignment on the original complaint on May 12, 1966, until he was ulti

Excessive, unexcused delay is a ground for dismissal of a criminal charge even though the particular delay is not specifically covered by a statute requiring mandatory dismissal. Article I, section 13, of the California Constitution states the fundamental policy that the defendant shall have the right to a speedy trial. The provisions of article I, section 13, although lacking an express time limit, are self-executing and thus give the defendant a right to move for a dismissal for excessive delay even though the delay does not come within any of the mandatory dismissal statutes. (Cf. People v. Godlewski (1943) 22 Cal.2d 677 , 682 [ 140 P.2d 381 ]; Witkin, Cal. Criminal Procedure (1963) § 306, p. 300. See also Pen. Code, § 1050.)

The defendant, both personally and through his counsel, repeatedly insisted upon the prompt disposition of his cause. Defense counsel moved for a dismissal on the ground, among others, that the defendant had not been afforded a speedy trial on December 27, 1966.

We do not question the right of the People to dismiss a felony charge and to refile it at any time before limitations have run. (Pen. Code, § 1387; People v. Godlewski, supra, 22 Cal.2d at p. 681.) The People, however, cannot avoid dismissal for unwarranted delay simply by successive dismissals and unexeused refilings of the same charges, unconscionably extending the pendency of the criminal charges without trial. Under all of the circumstances of this case we conclude that the court erred in denying defendant’s motion to dismiss count I of the information for excessive and inexcusable delay.