IN RE BISHOP

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Docket Number

Docket No. 8169.

Attorney(S)

Archer Zamloch, under appointment by the District Court of Appeal, for Petitioners. Charles F. Catterlin, City Prosecutor (Torrance), for Real Party in Interest. William B. McKesson, District Attorney (Los Angeles), Harry Wood and Harry B. Sondheim, Deputy District Attorneys, as Amici Curiae on behalf of Real Party in Interest.

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Smart Summary

Factual and Procedural Background

This proceeding arises from a habeas corpus application seeking the release of Marjorie Louise Bishop and Claude William Bishop from custody on the ground that they were not brought to trial within the 30-day statutory period mandated by Penal Code section 1382, subdivision 3. The defendants were arrested on December 25, 1961, and complaints were filed on December 27, 1961, in the Municipal Court of the South Bay Judicial District, Los Angeles County. The trial was initially set for January 18, 1962. On that date, the court offered to appoint counsel, which the defendants accepted, and the trial was reset for February 8, 1962. Neither at the initial arraignment nor at the trial-setting hearing were the defendants represented by counsel or advised of their statutory rights to a speedy trial within 30 days.

Following the appointment of counsel on January 22, 1962, a motion to dismiss for failure to comply with the speedy trial requirement was filed and denied by the municipal court. A writ of habeas corpus was then issued by the superior court, which held that although the trial court erred in failing to advise defendants of their rights, the writ was discharged because defense counsel had not timely brought the error to the court's attention to allow correction. The prosecution conceded that trial within the 30-day period was not met and argued that defense counsel's failure to timely object constituted a waiver of the right to a speedy trial.

Legal Issues Presented

Whether the defendants were denied their statutory right under Penal Code section 1382, subdivision 3, to be brought to trial within 30 days of arrest.
Whether the defendants waived their right to a speedy trial by failing to object to the trial date beyond the 30-day period after counsel was appointed.
Whether the failure of the trial court to advise unrepresented defendants of their rights under Penal Code section 1382 constitutes reversible error.

Arguments of the Parties

Petitioners' Arguments

The defendants were not brought to trial within the 30-day period required by Penal Code section 1382, subdivision 3.
The defendants were never advised of their rights to a speedy trial at any court appearance prior to counsel appointment.
The failure to object before counsel appointment cannot constitute a waiver of the right to a speedy trial.
There was no waiver of the right to a speedy trial by defendants or counsel after appointment.

Real Party in Interest's Arguments

The defendants failed to object to the trial date beyond the 30-day period after counsel was appointed, which constitutes a waiver of their right to a speedy trial.
It was the duty of defense counsel, upon learning there was no waiver, to promptly bring the matter to the court's attention to allow correction.
The failure of counsel to act in time effectively waived the defendants' right to a trial within the statutory period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brewer v. Municipal Court, 193 Cal.App.2d 510, 516	Waiver of speedy trial rights requires counsel to be advised of the lack of advisement and given reasonable opportunity to object; mere failure to object after appointment does not constitute waiver if counsel was not advised or had no opportunity.	The court relied on this precedent to hold that no waiver occurred because defendants were unrepresented and uninformed at the time the trial date was set, and counsel was appointed only later without opportunity to object.
People v. Rongo, 169 Cal. 71, 73	Consent to trial date beyond statutory period may be presumed if counsel is present and fails to object.	The court distinguished this case, noting that counsel was not present at the time the trial date was set, so no consent or waiver could be presumed.
People v. Morino, 85 Cal. 515, 517	Constitutional right to a speedy public trial is imperative and mandatory; courts must dismiss prosecution if statutory period expires without good cause shown.	The court emphasized the mandatory nature of the speedy trial requirement and that the prosecution bears the burden to justify delay, none of which was shown here.
People v. Angelopoulos, 30 Cal.App.2d 538, 543	Trial must be held within 30 days unless defendant consents or good cause is shown; court has no discretion to deny dismissal if time expires without trial.	Supported the conclusion that the trial court must dismiss absent consent or good cause, neither of which existed.
People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 894-895	The burden to proceed promptly rests on the state; failure of defendant to act does not alone constitute waiver.	The court cited this to reinforce that the state must ensure speedy trial and that defendant's failure to object before counsel appointment does not imply waiver.
Johnson v. Zerbst, 304 U.S. 458, 464	Waiver of fundamental constitutional rights must be intentional and knowing; courts presume against waiver.	The court applied this principle to conclude no waiver occurred on the facts presented.
Wilborn v. Superior Court, 175 Cal.App.2d 898, 901	Defendants are entitled to discharge if no waiver or good cause for delay is shown.	Used to support the holding that defendants should be discharged.
In re Vacca, 125 Cal.App.2d 751, 752	Speedy trial rights must be enforced; failure to comply requires discharge.	Supported the court's decision to grant the writ and discharge the defendants.
Herrick v. Municipal Court, 151 Cal.App.2d 804, 807	Failure to provide a speedy trial within statutory period entitles defendant to discharge.	Reinforced the court’s conclusion that defendants were entitled to release.

Court's Reasoning and Analysis

The court analyzed the statutory requirement under Penal Code section 1382, subdivision 3, mandating trial within 30 days of arrest unless the defendant consents or good cause is shown. The defendants were unrepresented and uninformed of their rights when the trial date beyond the 30-day period was set, and thus no waiver could be implied from their failure to object at that time. The appointment of counsel after the trial date was set did not retroactively create a waiver. The court relied on Brewer v. Municipal Court to emphasize that waiver requires knowledge and intentional relinquishment of rights, which was absent here. The prosecution's contention that defense counsel's failure to timely object after appointment constituted waiver was rejected because counsel had no opportunity to object before the statutory period expired. The court underscored the constitutional and statutory imperative for a speedy trial and held that the burden to proceed promptly lies with the state, not the defendant. Since no good cause for delay was shown and no waiver was established, the defendants were entitled to discharge.

Holding and Implications

The writ of habeas corpus is granted, and the defendants, Marjorie Louise Bishop and Claude William Bishop, are discharged from custody.

The direct effect of this decision is the release of the defendants due to violation of their statutory and constitutional right to a speedy trial. The court reaffirmed that waiver of such fundamental rights must be knowing and voluntary, and that failure to object by unrepresented defendants or their counsel after the statutory period does not constitute waiver. No new precedent was established beyond the application and reinforcement of existing law emphasizing the state's burden to provide a speedy trial and the protections afforded to defendants under Penal Code section 1382.

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In re MARJORIE LOUISE BISHOP et al., on Habeas Corpus.

THE COURT.

This is an application for a writ of habeas corpus to discharge Marjorie Louise Bishop and Claude William Bishop from custody on the ground that they were not brought to trial within the statutory period provided by Penal Code, section 1382, subdivision 3.

The relevant portion of this section provides: "The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: . . . 3. Regardless of when the complaint is filed, when a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he is arrested . . .; except that an action shall not be dismissed under this subdivision (1) if it is set for trial on a date beyond the prescribed period at the request of the defendant or with his consent, express or implied, and the defendant is brought to trial on the date so set for trial or within 10 days thereafter. . . .
"If the defendant is not represented by counsel, he shall not be deemed under this section to have consented to the date for his trial unless the court has explained to him his rights under this section and the effect of his consent."

Defendants were arrested on December 25, 1961, and taken into custody. On December 27, two complaints (thereafter ordered consolidated for trial) were filed in the Municipal Court of the South Bay Judicial District, County of Los Angeles. Marjorie Louise Bishop was charged with violation of sections 192, subdivision 2 and 273a of the Penal Code. Claude William Bishop was charged with violation of Penal Code, sections 192, subdivision 2,^fn3 273a and 270. On December 28, defendants appeared before the court, pleaded not guilty, and trial was set for January 18, 1962. When they appeared before the court on the date set for trial, January 18th, the court offered to appoint counsel to defend them, which offer they accepted, and the court set February 8, 1962, as the date of trial. These were the only appearances of defendants before the municipal court, and on neither occasion were they represented by counsel, nor were they advised of their rights to be brought to trial within 30 days.

The petition is that of Archer Zamloch "on behalf of" Marjorie Louise Bishop and Claude William Bishop. The latter parties will be referred to herein as "defendants."

This charge was dismissed.

On January 22, 1962, the court requested Archer Zamloch to represent defendants in this matter and he accepted the appointment. Notice of motion to dismiss each of the complaints was filed on January 26, upon the ground that defendants had been denied a speedy trial and for failure to comply with Penal Code, section 1382, subdivision 3. These appear to be the only facts before the municipal court at the time of the hearing upon the motions on January 29th. The matter was submitted and the motions denied on January 30, 1962.

Upon application, a writ of habeas corpus issued in the superior court and hearing was had on February 2, 1962. At this hearing the prosecution offered no testimony. Mr. Zamloch testified to the effect that after accepting the appointment on January 22, he visited the defendants on the afternoon of January 23, at which time he asked each of them if the court had asked them to "waive time for trial" upon the occasion of their two appearances in court and each stated that the court had not asked them for such waiver nor had they given it. He did not examine the court file on that date. On the same date, at about 5 p.m., after talking with defendants, Mr. Zamloch stopped at the office of Mr. Catterlin, the City Prosecutor of the city of Torrance, who represented the People in these actions, to discuss the case with him. In the course of that discussion he mentioned the failure of the court to comply with section 1382, and pointed out that the trial was set for more than 30 days from date of arrest, whereupon Mr. Catterlin responded to the effect that "the judge holds there is a waiver when a defendant fails to object to the date," to which Mr. Zamloch responded, "Just the same, if I were you I would want a formal waiver." On January 24th, Mr. Zamloch prepared the motion to dismiss. On the morning of January 25 he was required to fly to San Francisco and at his request the motions were filed on January 26 by an associate.

The superior court determined (and the prosecution conceded) that the trial court erred in failing to advise defendants of their rights, but discharged the writ and remanded defendants upon the ground that Mr. Zamloch had failed to advise the court of its error and thus afford it an opportunity to correct same.

The People concede that "[i]n order for the defendants to have been brought to trial within the 30-day period set forth in subdivision 3 of section 1382, Penal Code, it would have been necessary for their trial to have been held on or before January 24, 1962, or, in other words, within two days after the appointment of Mr. Zamloch as counsel for defendants." It is the position of the People that after appointment as counsel for defendants on January 22, and upon learning from the defendants on January 23 that they had not waived their rights to an early trial, it was the duty of counsel to bring the matter to the attention of the court "in time for the court to correct the error." It is contended that the failure of counsel to so do constituted a waiver by defendants of their right to trial within the 30-day period.

[1] It was held in Brewer v. Municipal Court, 193 Cal.App.2d 510, 516 [ 14 Cal.Rptr. 391], "that where a defendant is not represented by counsel at his arraignment and the court then sets the case for trial on a date beyond the 30-day period, that no waiver of time occurs solely by reason of the fact that he thereafter employs counsel in the absence of any showing that counsel was advised of the fact that the court had not advised the defendant of his right to an early trial at the time the case was set for trial and after being so advised had reasonable opportunity but failed to object to the trial date." (Emphasis added.) Further, at page 516, it is stated: "The People further contend that inasmuch as the record establishes that petitioner's counsel discovered on December 6th that the case was set for trial beyond the 30-day period and that his client had not been advised of his right to an early trial at the time the case was set, petitioner should have then moved the trial court to advance the trial from the 8th to the 7th of December and that having failed so to do his failure constituted a waiver of his right to trial within the statutory period. The law does not require useless acts. Whether it would have been useless for petitioner to move on one day's notice to advance a case for trial is a matter peculiarly within the knowledge of the judge of the respondent court who, as we have said, impliedly found there was no waiver."

[2] With regard to the question of waiver, the court in the Brewer opinion states (p. 515): "Waiver is the voluntary relinquishment of a known right [citations], and the burden is upon the party claiming waiver to prove it. [Citations.] [3] The issue as to whether petitioner waived his right to an early trial was one of fact to be determined by the respondent court. In granting the motion to dismiss, the respondent court of necessity impliedly found that there was no waiver. [4] Unless the facts establish waiver as a matter of law, neither we nor any other court can go behind the finding of the trial court and redetermine that issue." The prosecution in the case before us relies strongly upon an asserted implied finding of waiver by the trial court which it is contended cannot be disturbed.

It appears, however, that the facts which were before the municipal court in the instant case, at the time it ruled upon the motions to dismiss, established as a matter of law that there was no waiver. [5] The failure to object, by these defendants prior to their being represented by counsel, to the trial date beyond the 30-day period, did not constitute consent (Pen. Code, § 1382); [6] neither did the mere appointment of counsel for them after the trial date had been fixed constitute a waiver. ( Brewer v. Municipal Court, supra, p. 516.) [7] Had counsel been present in court at the time the judge fixed the date, then by failing to voice an objection consent would be presumed and constitute a waiver. ( People v. Rongo, 169 Cal. 71, 73 [ 145 P. 1017].)

[8] The basic principles as to the constitutional guarantees of a speedy public trial were early stated in People v. Morino, 85 Cal. 515, 517 [24 P. 892]: "A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important, or to prolong his imprisonment without such trial beyond the time provided by law. The statute is imperative. [9] `The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed.' Here no cause for delay was shown. [10] It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and that the case had not been postponed on his application. If there was any good cause for holding him for a longer time without a trial, it was for the prosecution to show it. The court could not presume it." [11] And in People v. Angelopoulos, 30 Cal.App.2d 538, 543 [ 86 P.2d 873] (substituting 30 days for the 60-day provision there applicable) it is said: "When the defendant has not consented to a continuance of the cause against him, and the prosecution fails to show good cause therefor, upon motion of the accused person it is mandatory upon the court to dismiss the action when more than [30 days] have elapsed without bringing the case to trial. Under such circumstances the court has no discretion to deny the motion. [Citations.] [12] Article I, section 13, of the Constitution of California guarantees an accused person a speedy trial. That constitutional provision is construed by section 1382 of the Penal Code to limit the time within which the trial must be had to a period of [30 days], unless by the defendant's conduct or acquiescence he consents to extend that time, except when the business of the court, the illness of the judge, or some other good reason for delay prevents the trial during that period of time."

The duty of setting the case for trial and of expediting all proceedings is on the state. (Pen. Code, §§ 1050, 686.) Section 1050 provides that "[i]t shall be the duty of all courts and judicial officers and of all district attorneys to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice." [13] It is aptly stated in People v. Prosser, 309 N.Y. 353 [ 130 N.E.2d 891, 894-895, 57 A.L.R.2d 295] that ". . . the burden of proceeding promptly is on the state, not on the defendant. . . . It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial. And from this it follows that the mere failure of the defendant to take affirmative action to prevent delay may not, without more, be construed or treated as a waiver."

This is not to say that there may not be situations wherein the failure of a defendant to take affirmative action, i.e., by making his objection known, or by demanding an earlier trial date, may constitute waiver. ( Cf., People v. Martinez, 145 Cal.App.2d 361, 365 [ 302 P.2d 643]; People v. Contrerai, 172 Cal.App.2d 369, 371 [ 341 P.2d 849]; People v. O'Leary, 130 Cal.App.2d 430, 436 [ 278 P.2d 933].) But such a situation is not here presented.

[14] "It has been pointed out that the `courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." ( Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357].) We conclude that upon the facts before us, there was no waiver.

[15] There being no waiver, and no good cause shown by the prosecution for failure to bring the matter to trial within the 30-day period, the defendants are entitled to their discharge. (See Wilborn v. Superior Court, 175 Cal.App.2d 898, 901 [ 1 Cal.Rptr. 131]; In re Vacca, 125 Cal.App.2d 751, 752 [ 271 P.2d 162]; Herrick v. Municipal Court, 151 Cal.App.2d 804, 807 [ 312 P.2d 264].)

The writ is granted and the defendants are discharged from the custody of the sheriff of Los Angeles County.