CURLEE TOWNSEND, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 15 Cal. 3d 774

Opinion RICHARDSON, J. In this case we are called upon to interpret and apply the provisions of California Penal Code

section 1382 which require that a criminal defendant, in most felony cases, be brought to trial within 60 days after the filing of an accusatoiy pleading. In particular, we consider the effect of that statute in relation to the traditional power of trial counsel to control the proceedings. Petitioner, defendant in a criminal action currently pending in Los Angeles County Superior Court, seeks an extraordinary writ requiring respondent court to set aside its order denying, and directing the grant of, his motion to dismiss. Petitioner alleges violation of his constitutional right to a speedy trial as that right is implemented by Penal Code

section 1382, subdivision 2. This

section provides: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2.

When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . . ; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.” In the matter before us we have concluded, as we develop below, that the requested relief must be denied since trial herein was finally set to commence within the 10-day period contemplated by

section 1382, subdivision 2. We describe the procedural history of the case occurring in' 1974. On August 16 an information was filed in respondent court, charging petitioner with a violation of Health and Safety Code

section 11352 (sale of a controlled substance), and further alleging a prior conviction under former Health and Safety Code

section 11530 (possession of marijuana). A public defender was appointed to represent petitioner, and the matter was continued to August 29. On that date, a plea of not guilty was entered and, with counsel’s consent, the court set a trial date of October 25. A series of delays ensued in bringing petitioner to trial. On October 25 Deputy Public Defender Millard, then representing petitioner, requested a continuance until October 28 because his heavy caseload had prevented him from adequately preparing for petitioner’s trial.

On October 28 the same counsel moved for another continuance on the same grounds, and trial was tentatively reset for November 7. On November 7 Millard was engaged in another trial and unable to make the scheduled appearance in petitioner’s case. Deputy Public Defender Blum appeared on petitioner’s behalf and informed the court of the reasons for Millard’s absence. It was thereupon agreed between court and counsel that the matter be “trailed” or continued from day to day until such time as Millard became available.

This “trailing” continued until November 12, on which day Millard appeared, announced he was “ready” for trial, but also explained to the court that he was “trailing” in another case, People v. Bond. Because the Bond matter was deemed by defense counsel to be the more pressing of the two, Millard once again requested that petitioner’s case be trailed from day to day, pending his completion of the Bond trial. Millard stated to the court that he did not expect Bond to take more than an hour or two once trial began.

On November 13, another appearance was made by Millard at which time he indicated to the court that the situation was unchanged, and the court observed that “time is running.” This was an apparent reference to the last sentence of

section 1382, subdivision 2, requiring that a defendant be brought to trial within the 10-day period therein described. Defense counsel concurred in the court’s assessment of the status of the case. On Friday, November 15, Millard again appeared, notified the court that Bond was set for trial at 2 p.m. that.afternoon, and that he would be available to try petitioner’s case immediately thereafter. Trial was thereupon reset for Monday, November 18, and the trial judge opined that the 10-day period in question would expire on the 18th.

Millard agreed, but nevertheless specifically requested that the case be put over to the 18th. On Monday, November 18, prosecution and defense counsel both appeared, ready and willing to proceed. However, at this time the court on its own motion, a second judge sitting, over the objection of defense counsel who argued that the case was then in its 10th and final day, continued the matter until November 25 because of a calendar conflict. The court calculated that the 25th would be the 7th day of the 10 days contemplated in

section 1382, subdivision 2. The defense objection was overruled and on November 19 a motion to dismiss was filed in the superior court on the ground that petitioner’s right to a speedy trial had been violated. The motion was denied. On November 27 proceedings below were stayed pending this court’s determination of the matter. The parties make conflicting assertions. Petitioner argues that the 10-day “grace period” provided in

section 1382, subdivision 2, commenced on November 12, the date on which his counsel announced that he was “ready” for trial, but was “trailing.” Respondent contends that the 10-day period began on the 18th, the date on which both parties were unconditionally “ready” for trial, and that a trial date of November 25 was therefore within the statutory period.

It is fundamental that the general right to “a speedy and public trial” guaranteed by the Sixth Amendment to the United States Constitution is encompassed within the due process clause of the Fourteenth Amendment and is thus fully applicable to the states. (Klopfer v. North Carolina (1967) 386 U.S. 213, 223 [18 L.Ed.2d 1, 8; 87 S.Ct. 988].)

Article I,

section 13 of the California Constitution contains similar language and the Legislature has re-expressed and amplified the guarantee by various statutory enactments including Penal Code

section 1382. (See, e.g., Pen. Code, §§ 686, subd. 1, 1050, and 1381 et seq.) We have previously observed that the provisions of

section 1382 are intended to implement a broader policy clearly expressed in the following language of Penal Code

section 1050: “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice.” (See Sykes v. Superior Court (1973) 9 Cal.3d 83, 88 [106 Cal.Rptr. 786, 507 P.2d 90].) The prerogative writ is a proper remedy where violation of Penal Code

section 1382 is alleged (People v. Wilson (1963) 60 Cal.2d 139, 149-150 [32 Cal.Rptr. 44, 383 P.2d 452]), and where such a violation is shown, dismissal is mandatory, regardless of whether petitioner makes an affirmative showing of prejudice (Sykes v. Superior Court, supra, at p. 89). Dismissal does not necessarily mean, however, that the defendant is immune from further prosecution. (See Pen. Code, § 1387; Crockett v. Superior Court (1975) 14 Cal.3d 433 [121 Cal.Rptr. 457, 535 P.2d 321].) Before we review the arithmetic involved in the significant calendar dates in the matter before us we consider and resolve a preliminary issue. The 10-day grace period described in

section 1382, subdivision 2, becomes operative only when defendant has consented, expressly or impliedly, to a trial date beyond the basic 60-day limit. Petitioner at no time personally agreed to a continuance beyond 60 days. In fact, at every stage of the proceedings, when present, petitioner refused to “waive time,” pointed out to the court that he had been in custody beyond 60 days, and demanded to be tried or released. Consistent with his position, petitioner refused to join in his counsel’s various requests for, or consents to, a continuance.

On November 15 he filed, in propria persona, a petition for writ of habeas corpus alleging a violation of his right to a speedy trial. This petition was summarily denied. We consider the question—did the consent of petitioner’s counsel to the various extensions of time bind petitioner? If not, the 60-day period contemplated by

section 1382 having elapsed, the calculation of the 10-day grace period becomes moot and the information must be dismissed. We have concluded, subject to certain limitations, that consent of counsel alone without that of the client, satisfies

section 1382, subdivision 2. While no previous California cases have considered the precise issue, the general import of other cases dealing with similar issues arising from related and parallel circumstances supports such a conclusion. In People v. Kirkpatrick (1972) 7 Cal.3d 480, 485-486 [102 Cal.Rptr. 744, 498 P.2d 992] for instance, we rejected a speedy trial claim despite the fact that the defendant had personally refused to waive time. Citing People v.

Merkouris (1956) 46 Cal.2d 540, 554 [297 P.2d 999], we held that counsel’s consent to delays beyond 60 days is sufficient, at least where the continuances are reasonable. In People v.

Wilson (1974) 40 Cal.App.3d 913 at page 915 [115 Cal.Rptr. 619], the Court of Appeal upheld the trial court’s grant of continuances at counsel’s request where no affirmative consent was obtained from the defendant, the court stating in dictum that “even if appellant had voiced an objection, his attorney would have had authority to seek continuance over the client’s protest. [Citations.]” In general, it is well established that the power to control judicial proceedings is vested exclusively in counsel. (People v. Kirkpatrick, supra, 7 Cal.3d 480, 486; People v.

Floyd (1970) 1 Cal.3d 694, 704 [83 Cal.Rptr. 608, 464 P.2d 64] People v. Merkouris, supra, 46 Cal.2d 540, 554.) It follows that “[ejxcept where representation by counsel is so ineffective that it can be described as a ‘farce and a sham’ [citations], an attorney may ordinarily waive his client’s rights . . . .” (People v. Hill (1967) 67 Cal.2d 105, 114 [60 Cal.Rptr. 234, 429 P.2d 586].) Where counsel has been appointed and is present in court “neither the party himself [citations] nor another attorney [citations], can be recognized.” (People v.

Merkouris, supra, 46 Cal.2d at pp. 554-555.) While the United States Supreme Court has recently held that a criminal defendant cannot be denied the right to represent himself if he knowingly and intelligently chooses to forego the assistance of counsel (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]), Faretta has no effect on cases such as that before us where counsel has in fact been appointed.

In such instances, Faretta, in discussing California criminal procedure, notes: “The appointed counsel manages the lawsuit and has the final say in all but a few matters of trial strategy. [Citations.]” (Faretta v. California, supra, 422 U.S. at p. 812, fn. 8 [45 L.Ed.2d at p. 569].) Counsel’s control, of course, is not unlimited, and there are certain fundamental protections guaranteed an accused which counsel may not waive without his client’s concurrence. (Brookhart v. Janis (1966) 384 U.S. 1, 7 [16 L.Ed.2d 314, 318, 86 S.Ct. 1245] [jury trial and confrontation]; People v.

Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008] [same]; People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710] [right to testify in own defense].) The right to a speedy trial is undeniably “as fundamental as any of the rights secured by the Sixth Amendment” (Klopfer v. North Carolina, supra, 386 U.S. 213, 223 [18 L.Ed.2d 1, 8]), and we have previously stated in dictum that counsel may not waive this constitutional right over his client’s objections. (People v.

Floyd, supra, 1 Cal.3d 694, 706-707.) In contrast, however, the statutory right to be tried within 60 days (§ 1382, subd. 2) cannot properly be termed “fundamental” in the foregoing sense and therefore beyond counsel’s primary control. Being of statutory origin, a defendant’s rights under

section 1382 are “merely supplementary to and a construction of the Constitution. [Citations.]” (Sykes v. Superior Court, supra, 9 Cal.3d 83, 89.) They do not carry the force or weight of constitutionally mandated imperatives. In this connection we think it significant that the United States Supreme Court has clearly rejected the proposition that the constitutional right to a speedy trial “. . . can be quantified into a specified number of days or months.” (Barker v.

Wingo (1972) 407 U.S. 514, 523 [33 L.Ed.2d 101, 113, 92 S.Ct. 2182].) The case before us presents a confrontation between two of the defendant’s rights, the right to a speedy trial constitutionally guaranteed and statutorily implemented and amplified within the time framework of Penal Code

section 1382 on the one hand, and his Sixth Amendment right to competent and adequately prepared counsel on the other. In such a situation, in the words of the appellate court in People v. Powell (1974) 40 Cal.App.3d 107, 148 [115 Cal.Rptr. 109], the trial court must carefully navigate procedurally between “the Scylla of delay and the Charybdis of ineffective and inadequate representation.” Cognizant of the foregoing legal principles, we examine the procedural sequence in the instant matter.

Petitioner argues that when Deputy Public Defender Millard appeared on November 12 and announced that he was “ready” for trial, the 10-day grace period began. He asserts that while there may have been a one day “tolling” of the grace period during the interval between the 12th and the 18th (while the deputy public defender assigned to his case was in another trial), the 10 days having commenced on November 12 nevertheless expired prior to November 25. There is no authority, either in the language of

section 1382, subdivision 2, or in case law to support petitioner’s “tolling” theory. Furthermore, we need not concern ourselves with the validity of this contention since the assumption upon which it depends is the result of a misinterpretation of

section 1382, subdivision 2, as we demonstrate below. In asserting that the 10-day period contemplated by

section 1382 began on November 12, petitioner relies on People v. Wilson, supra, 60 Cal.2d 139, 145. That reliance is misplaced. In Wilson, a trial date had been set for August 25 and all counsel appeared on that day ready for trial. We held that the trial court erred in granting the prosecution a continuance until October 31, and that the statutory 10-day period commenced running on August 25.

However, in Wilson, defense counsel specifically objected to any farther delays and we noted that “the last day to which defendant in any way consented was August 25, 1960.” (Id., at p. 145.) Here, in contrast, no such objection was forthcoming on November 12. On that day, defense counsel himself asked that petitioner’s case trail from day to day until he had finished “the Bond matter.” The situation remained unchanged until November 15, when counsel appeared once again and informed the court that he would complete the Bond trial late that afternoon.

November 15 being a Friday, the court suggested that trial be set for Monday, November 18. Defense counsel agreed. While it is true that counsel indicated at the proceedings of November 7, 12 and 15, that he believed the 10-day period was expiring, such a statement was based on his erroneous

interpretation of the statute, and did not constitute an objection to further continuances. It was not until November 18, when the court announced trial would be held November 25, that defense counsel for the first time made any affirmative objection to further delay. In the absence of such an objection, the defense is deemed to have consented to the continuance. (People v. Wilson, supra, 60 Cal.2d 139, 146; Castaneda v. Municipal Court (1972) 25 Cal.App.3d 588, 594 [102 Cal.Rptr. 230].) As expressed in Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 132-133 [105 Cal.Rptr. 391] with reference to

section 1382: “The statute provides that an action need not be dismissed if it is set for trial beyond the 60-day period with the consent of the defendant and if defendant is brought to trial within 10 days thereafter.

The word ‘thereafter’ refers back to the date the case was set with the defendant’s consent.” While the record discloses that on November 12 defense counsel responded that he was “ready” for trial, in truth and in fact he was not “ready” to proceed because of legitimate commitments in another case and it was not until November 18 that he was actually and unconditionally free to commence trial proceedings in the case before us. By counsel’s failure to object, and in some instances by his affirmative requests for delay, petitioner has effectively consented to every postponement up to and including November 18.

When, through counsel, he objected on that day to any further continuance, the critical 10-day period commenced. (People v. Wilson, supra, 60 Cal.2d 139, 145.) The trial was set within a 10-day period thereafter. Accordingly, three reasons appear for the delay in petitioner’s trial:

(1) Inability of defense counsel adequately to prepare for trial announced by him on October 25th and 28th, (2) conflict in trial dates involving defense counsel resulting in a “trailing” which occurred on November 7th, 12th, 13th and 15th, and (3) a court calendar conflict on November 18th. Inadequacy of time for defense counsel to prepare for trial, and calendar conflicts of court and defense counsel account for the delay involved.

We are cognizant of the heavy caseloads resting upon the criminal trial courts of this state and upon the affected prosecutors’ and public defenders’ offices as well, and for the sheer necessity of the “trailing” practice here indulged. We have concluded that the trial court adopted the proper course in the matter before us. However, our holding herein is carefully circumscribed. We do not suggest that counsel possesses carte blanche under any and all conditions to postpone his client’s trial indefinitely.

Counsel’s power in this regard is not unlimited. “[A] criminal defendant may not be deprived of a speedy trial because the prosecution—or the defense—is lazy or indifferent, or because the prosecution seeks to harass the defendant rather than bring him fairly to justice . . . .” (People v. Floyd, supra, 1 Cal.3d 694, 707.) No such circumstances are herein presented. Nor may counsel effectively waive his client’s rights where the record reveals that the latter was the victim of inadequate representation. (See People v. Hill, supra, 67 Cal.2d 105, 114.) This is not such a case.

All requests for continuance were reasonably justified. Defense counsel is undoubtedly well qualified to represent petitioner, and is pursuing his client’s best interests in a competent mánner. We, accordingly, conclude that the trial date of November 25 was within the time reference contemplated by

section 1382, subdivision 2. The petition for writ of prohibition is denied. Wright, C. J., McComb, J., Sullivan, J., and Clark, J., concurred.