THE PEOPLE, Plaintiff and Respondent, v. WILLIAM R. WILSON, Defendant and Appellant, 60 Cal. 2d 139

SCHAUER, J. Defendant appeals from judgments of conviction entered upon jury verdicts finding him guilty of murder in the first degree (Count

I) and assault with a deadly weapon (Count II). On the murder count the jury fixed the penalty at life imprisonment. Defendant contends that he was erroneously denied a speedy trial and that the prosecutor’s use of his offer to plead guilty to second degree murder constituted prejudicial misconduct. After an examination of the entire record we have concluded that the asserted errors did not result in a miscarriage of justice (Cal. Const., art. VI, § 4%) and hence that the judgments should be affirmed.

It is unquestioned that the evidence is sufficient to support the verdicts, and defendant makes no contention to the contrary.

The record shows that defendant shot and killed his wife as the culmination of a long series of beatings and other cruelties inflicted on her, coupled with threats to kill her and their children; that sufficient time elapsed between the last quarrelsome words of the parties and the time of the killing to bring the case well within the category of first degree murder; that in committing the crime defendant went first to his house, picked up his rifle and some ammunition, drove to the place where his wife was staying, and after speaking with her took the rifle from the back seat and loaded it with ammunition from the glove compartment; that he put the weapon to his shoulder, aimed it at his fleeing wife, and fired one shot into her head and one shot into her body, killing her; that he then pointed the rifle at Ida Phillips, his wife’s companion, and shot her as she cried, “Don’t shoot, don’t shoot’’; that defendant thereafter told the police, “I know I’m guilty.

I was the one that pulled the trigger. ... I meant to fire it’’ and “I fired at her. . . .” The chronology relevant to defendant’s contention that he was denied a speedy trial is as follows: The information charging defendant with murder and assault with a deadly weapon was filed on January 14, 1960. On January 22, 1960, defendant was arraigned and pleaded not guilty. At that time, personally and through counsel, he waived his right to be tried within 60 days of the filing of the information. Thereafter, either at defendant’s request or with his acquiescence, the case was properly continued from time to time.

On May 24, 1960, defendant requested June 22 as the trial date. On June 22 the prosecution asked for a continuance until July 18. Defendant’s counsel indicated that he could not attend on that date because he had to go to Louisiana and would not be back in the state until August. The prosecution then suggested the end of August for trial. Defense counsel objected that that was too far in the future and suggested an earlier date, but finally proposed August 25, whereupon the trial court continued the ease to August 25 “for trial.” On August 25 defendant and his counsel appeared ready for trial.

The trial court reminded counsel that in Alameda County jury trials in criminal cases did not normally start on Thursdays (August 25, 1960, was a Thursday). At this point the prosecuting attorney explained that he had just finished an eight-week trial, that he was preparing argument on a motion for new trial in another case, and that he had not yet taken his vacation. He requested that the trial date be set for October 31.

Defense counsel replied that the date of August 25 had previously been set by the court for trial, and urged that he had a right to rely on that date regardless of whether new juries ordinarily came in on Thursday or not. With regard to the requested continuance date of October 31 defense counsel said, “I will object to that day or any day, and you will set it over my objection.” Over this objection, the court continued the case until October 31,1960, for trial. On October 25, 1960, defendant filed a motion in the trial court to dismiss on the ground that he had been denied a speedy trial. The motion was denied.

Defendant then filed an application for writ of mandate with the District Court of Appeal. The petition was still pending on October 31, 1960, and at defendant’s request the case was continued until disposition of the writ proceeding, without prejudice to his claim that he had not been afforded a speedy trial. The District Court of Appeal denied the writ, and trial began on November 2, 1960, over defendant’s renewed objection to this effect.

Article I,

section 13, of our Constitution declares that “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; . . . ” Penal Code

section 1382 provides in relevant part that “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 . . . and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.” The relationship between the latter statute and the constitutional guarantee of a speedy trial has been variously described in the cases (see e.g., Harris v.

Municipal Court (1930), supra, 209 Cal. 55, 61 [2]; Matter of Ford (1911) 160 Cal. 334, 338 [116 P. 757, Ann. Cas. 1912D 1267, 35 L.R.A. N.S. 882]; People v. Romero (1936) 13 Cal.App.2d 667, 671 [2] - 672 [3] [57 P.2d 557]); it is sufficient for present purposes to adopt the statement of this court in People v. Godlewshi (1943) 22 Cal.2d 677, 682 [3] [140 P.2d 381], to the effect that the subject provisions of the Penal Code are “supplementary to and a construction of' the Constitution. Here, defendant waived the original 60-day period and waived time for a considerable period thereafter.

But the last day to which defendant in any way consented was August 25, 1960. This automatically brought into operation the 10-day provision of

section 1382 of the Penal Code. In other words, under that

section defendant had the statutory right to be tried within 10 days after August 25 unless the prosecutor or the court showed good cause for further delay. On the facts before us there was not a sufficient showing of good cause for such delay, and the court therefore erred in overruling defendant’s objection to the trial date of October 31 and in denying his subsequent motion to dismiss. Defendant contends that this erroneous denial of his right to a speedy trial requires reversal of the judgments of conviction without regard to whether or not the error was prejudicial.

To resolve this issue it is necessary to review the nature and purpose of the right here involved, and the appropriate remedies for its enforcement. The Nature of the Bight to a Speedy Trial. It is settled that “the constitutional right to a speedy trial and the [hereinabove quoted] . . . statutory requirements may be waived.” (People v. Tahtinen (1958) 50 Cal.2d 127, 131 [1] [323 P.2d 442].) A defendant’s consent that his trial be set for a date beyond the limit prescribed “is equivalent to a postponement upon his application” (People v.

Taylor (1959) 52 Cal.2d 91, 93 [1] [338 P.2d 337]) and hence constitutes a waiver of the right; and consent will be presumed if the defendant fails to take the necessary procedural steps of making timely objection to such delay and thereafter moving for dismissal (id. at p. 93 [2]). The right to a speedy trial must therefore be asserted, if at all, in the court where the prosecution is pending, and prior to the commencement of trial. (People v. Newell (1923) 192 Cal. 659, 669 [5] [221 P. 622].) It is too late to raise the point for the first time on appeal (People v.

Sylvia (1960) 54 Cal.2d 115, 123 [9] [4 Cal.Rptr. 509, 351 P.2d 781]; People v. Jordan (1955) 45 Cal.2d 697, 708 [16] [290 P.2d 484]; People v. Mitman (1960) 184 Cal.App.2d 685, 689 [1] [7 Cal.Rptr. 712]); nor may it be raised for the first time by a petition for habeas corpus after judgment of conviction (In re Anderson (1955) 134 Cal.App.2d 552 [2] [285 P.2d 690]; In re Todd (1919) 44 Cal.App. 496, 502 [4] -503 [6] [186 P. 790]) or by an application for writ of error coram nobis (People v. Martinelli (1953) 118 Cal.App.2d 94, 97 [4] [257 P.2d 37], followed in People v.

Jackson (1958) 165 Cal.App.2d 183, 185 [2] [331 P.2d 981]). The right to a speedy trial, furthermore, will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss. Such a rule is the logical consequence of the fact that the objection and the motion to dismiss serve different purposes; and it is the rule laid down by the California decisions. To begin with, it is settled that “When a defendant fails to object at the time a cause is set for trial beyond the statutory period, consent is presumed.” (Italics added.) (People v.

Taylor (1959), supra, 52 Cal.2d 91, 93 [2]; People v. Tahtinen (1958), supra, 50 Cal.2d 127, 131 [3]; Ray v. Superior Court (1929) 208 Cal. 357, 358 [1] [281 P. 391].) The twofold purpose of this requirement is well explained in People v. Lind (1924) 68 Cal.App. 575, 579 [2] [229 P. 990]: “First, by calling the attention of the trial court to the facts upon which the objection is founded, it may serve to procure an earlier trial of the defendant and thus earlier end his durance or encompass his conviction.

Second, the objection must be made as a forerunner to a motion to dismiss, for it has been uniformly determined that on appeal an order denying the motion will be affirmed if the record does not show that the objection was made.” (In support of the latter proposition, see People v. Miller (1961) 190 Cal.App.2d 361, 365 [10-11] [11 Cal.Rptr. 920]; People v. Baker (1958) 164 Cal.App.2d 99, 102-103 [2] [330 P2d 240]; People v.

Hocking (1956) 140 Cal.App.2d 778, 782 [4] [296 P.2d 59].) Moreover, it is equally well settled that even after such an objection “There is no duty incumbent on the court to order dismissal under said

section 1382 unless the defendant demands it” (italics added) (People v. Hawkins (1899) 127 Cal. 372, 374 [59 P. 697]; accord, People v. Contrerai (1959) 172 Cal.App.2d 369, 371 [4] [341 P.2d 849]; Ex parte Apakean (1923) 63 Cal.App. 438, 440 [1] [218 P. 767]). As observed in People v. Lind (1924), supra, 68 Cal.App. 575, 578 [1], after an analysis of the decisions of this court, “a right to move for a dismissal is the sole right protected by

section 1382.” It is not enough that the defendant has objected at the time the cause was set for trial beyond the statutory period: “an appellant in such a case cannot make a successful claim of error by the trial court merely because the court has not heeded an objection to the setting of the case. . . .” (Id. at p. 579 [1].) The defendant must also move to dismiss after the expiration of the allowable delay (but before the beginning of trial) so that if the court decides that the statutory period has been exceeded, that there has not been good cause for the delay, and that a proper and timely objection was made, a futile trial will be avoided.

Thus in People v. Martinez (1956) 145 Cal.App.2d 361, 365 [1-2] [302 P.2d 643] the court reasoned: “Here, defendant’s objecting, on the 59th day, to a continuance beyond the 60th day was a proper method of making his position known. A motion for dismissal on the 59th day would have been premature. But he should have followed it up after the lapse of 60 days. He did not do so. . . .

It is not the policy of the law to permit a person thus to keep his silence, take his chance on getting a favorable verdict and, if he loses, at some later time (perhaps after the statute of limitations has run) come in and void the judgment by raising a point which if timely raised would have allowed the filing of a new information before the running of the statute and while the state’s witnesses were still available.” (Italics added.) (Accord, People v. Newell (1923), supra, 192 Cal. 659, 669 [5]; People v.

Villarico (1956) 140 Cal.App.2d 233, 235-236 [2] [295 P.2d 76].) It follows that in considering the legal consequences of a denial of a speedy trial it should be kept in mind that we are dealing not with a favored right such as the right “to appear and defend, in person and with counsel” (Cal. Const., art. I, § 13; see In re James (1952) 38 Cal.2d 302, 310 [3] - 313 [10] [240 P.2d 596]) but with a privilege personal to the defendant which will be deemed to be waived if not asserted by him in timely fashion.

The same is true, it may be added, of the right to a speedy trial guaranteed in the federal courts by the Sixth Amendment to the United States Constitution. (Chinn v. United States (4th Cir. 1955) 228 F.2d 151, 153 [2, 3]; Morland v. United States (10th Cir. 1951) 193 F.2d 297, 298 [1-3].) The Purpose of the Bight to a Speedy Trial. It should also be kept in mind that “The basic policy underlying the constitutional provision [guaranteeing the right to a speedy trial] is to protect the accused from having criminal charges pending against him an undue length of time.” (People v.

Godlewski (1943), supra, 22 Cal.2d 677, 682 [5].) The historical necessity for such protection was adverted to by this court in declaring that the constitutional provision “certainly, has no other function than to protect those accused of crime against possible delay, caused either by willful oppression, or the neglect of the state or its officers.

For, no doubt, as said by Blackstone (Commentaries, book 3, p. 138), ‘persons apprehended upon suspicion have suffered long imprisonment, merely because they were forgotten. ’ ’ ’ (In re Begerow (1901) 133 Cal. 349, 354-355 [65 P. 828, 85 Am.St.Rep. 178, 56 L.R.A. 513].) And Penal Code

section 1382 is designed to afford the same protection. (In re Alpine (1928) 203 Cal. 731, 737 [4] [265 P. 947, 58 A.L.R. 1500].) Remedies for Enforcing the Bight to a Speedy Trial. The defendant's primary remedy, of course, is a timely motion to dismiss in the trial court.

But a denial of that motion is a nonappealable interlocutory order. (Matter of Ford (1911), supra, 160 Cal. 334, 348.) In the early California cases there was some disagreement as to whether the defendant’s proper remedy after erroneous denial of his motion to dismiss was to petition for a writ of habeas corpus or for a writ of mandate. (See, e.g., In re Begerow (1901), supra, 133 Cal. 349, 355; id. at 356-359 (dissenting opinion); Ex parte Vinton (1897) 5 Cal. Unrep. 624 [47 P. 1019]; Strong v.

Grant (1893) 99 Cal. 100 [33 P. 773], The dispute was settled by the leading decision of Matter of Ford (1911), supra, 160 Cal. 334, 342-349, where, after a detailed discussion and review of the authorities it was held (pp. 348-349) that “In our view, a defendant who claims that the superior court illegally refuses to grant his motion to dismiss an indictment [or, as here, an information] against him where he had not been brought to trial within sixty days, is entitled to apply to this court for a writ of mandate, and if, upon the hearing thereof, it clearly appears that there was no good cause shown at the hearing of the motion — and upon which showing alone would the court be warranted under the statute in refusing to dismiss; that the action of the court in its refusal was simply arbitrary and amounted to an abuse of discretion, this court will direct a peremptory writ of mandate to issue compelling the superior court to do what, in the absense of such showing, was its clear positive legal duty — dismiss the indictment. ’ ’ Since the Ford decision it has consistently been held that the defendant’s proper remedy in this situation is to petition for writ of mandate prior to the commencement of trial. (See, e.g., In re Alpine (1928), supra, 203 Cal. 731, 739 [6]; Harris v.

Municipal Court (1930), supra, 209 Cal. 55, 65; Ford v. Superior Court (1911) 17 Cal.App. 1 [118 P. 96]; Cordts v. Superior Court (1921) 53 Cal.App. 589 [200 P. 726]; In re Spagnoli (1921) 53 Cal.App. 523, 524 [2] [200 P. 836]; Chrisman v. Superior Court (1923) 63 Cal.App. 477, 480 [219 P. 85]; De La Mar v. Superior Court (1937) 22 Cal.App.2d 373, 375 [1] [71 P.2d 96]; Rice v. Superior Court (1940) 40 Cal.App.2d 391 [104 P.2d 874]; Dearth v. Superior Court (1940) 40 Cal.App.2d 56 [104 P.2d 376]; Sigle v. Superior Court (1954) 125 Cal.App.2d 747 [271 P.2d 526]; Wilborn v.

Superior Court (1959) 175 Cal.App.2d 898 [1 Cal.Rptr. 131].) It has also been held that prohibition will lie to prevent the trial court from taking any further action in the criminal proceeding other than to order its dismissal. (Herrick v. Municipal Court (1957) 151 Cal.App.2d 804 [312 P.2d 264]; Coughlan v.

Justice Court (1954) 123 Cal.App.2d 654 [267 P.2d 368].) And while there was some uncertainty in the early cases as to whether habeas corpus was available in these circumstances (compare In re Begerow (1901), supra, 133 Cal. 349, with In re Alpine (1928), supra, 203 Cal. 731, 739 [6] -744 [10]), we have entertained on its merits such an application for habeas corpus (In re Lopez (1952) 39 Cal.2d 118 [245 P.2d 1]) and relief through that writ has been granted in at least one recent appellate decision (In re Vacca (1954) 125 Cal.App.2d 751 [271 P.2d 162]).

In the ease at bench a different situation is presented: defendant’s motion to dismiss was denied, and his application to the District Court of Appeal for writ of mandate was unsuccessful. For reasons best known to himself (or his counsel) defendant failed to petition this court for a hearing.

As noted hereinabove (fn. 1), the clerk’s transcript recites—and at the time of defendant’s application to the District Court of Appeal, apparently, the minutes of the court recited—that the continuance of the trial date from August 25 to October 31, 1960, was ordered “at the request of the defendant. ...” On such a state of the record it was proper for the District Court of Appeal to deny defendant’s application for mandate, for if the continuance complained of had been at defendant’s request—as entered in the minutes—the statute commanded that ‘ [the] action shall not be dismissed” (Pen. Code, § 1382, subd. 2).

Defendant made no effort to have the minutes corrected in this respect, just as he thereafter made no effort to have the corresponding recital in the clerk’s transcript changed. Yet defendant now renews on appeal his cqntention that he was denied a speedy trial. Although the order denying his motion to dismiss was not directly appealable, it may be reviewed on appeal from the judgment of conviction. (Matter of Ford (1911), supra, 160 Cal. 334, 348.) The crucial question is whether defendant is somehow relieved of the burden, imposed by

article VI,

section 4%, of our Constitution, of showing that the denial of his motion to dismiss re-suited in a miscarriage of justice. It is true that Penal Code

section 1382, subdivision 2, is mandatory (“The court, unless good cause to the contrary is shown, must order the action to be dismissed . . .”); hence—there being no sufficient showing of good cause for delay in the case at bench—defendant then had the right to have the action dismissed on his motion. At the time when he made that motion—i.e., prior to commencement of the trial—no further showing was required of him; in particular, he was not required to affirmatively show that he had been prejudiced by the delay. (Harris v. Municipal Court (1930), supra, 209 Cal. 55, 64 [6].) But that time is now past.

To properly evaluate the significance of this fact we must revert to the discussion hereinabove of the purpose of the right to a speedy trial; that purpose, it was observed, is to protect the accused from having criminal charges pending against him for an undue length of time. (People v. Godlewski (1943), supra, 22 Cal.2d 677, 682 [5].) But in the case at bench nothing that any court can do now will achieve that end-, the charges are no longer pending against defendant; the delay has ended, and he has been duly tried and convicted.

It is, very simply, too late for defendant to seek to be relieved of a delay that no longer exists. As observed in Matter of Ford (1911), supra, 160 Cal. 334, 348, “the right of appeal after conviction affords no adequate remedy. . . . Under such circumstances, if [an accused] is not afforded a remedy by mandamus . . . the constitutional guarantee and the statutory mandate are, as to him, worthless.” And as Chief Justice Beatty pointed out, concurring in Strong v.

Grant (1893), supra, 99 Cal. 100, 104, “Appeal . . . is no remedy, for [the accused] cannot appeal until after a trial, and the refusal to bring him to trial is the very wrong of which he complains. ...” While it is thus too late to relieve defendant of the delay in bringing him to trial, it is not too late to afford him appellate review of the matter—i.e., for this court, in reviewing the judgments of conviction, to weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself.

But in this respect it is apparent that the denial of his right to a speedy trial—a personal right, be it remembered, which is presumed to be waived if the defendant fails to assert it in timely fashion—is no more significant than any other error in procedure before trial. It follows that as one who seeks to predicate thereon a reversal of his judgments of conviction, defendant like any other appellant must show that the error was a prejudicial one. (Cal. Const., art. VI, §4%.) Statements or implications to the contrary in People v. Echols (1954) 125 Cal.App.2d 810, 818 [7] [271 P.2d 595], People v.

Fegelman (1944) 66 Cal.App.2d 950, 955 [1, 2] [153 P.2d 436], People v. Angelopoulos (1939) 30 Cal.App.2d 538, 544 [3] -545 [4] [86 P.2d 873], and People v. Perea (1929) 96 Cal.App. 183, 185 [3] [273 P. 836], are disapproved. Such statements stem from a failure to distinguish between a situation such as the present case where the denial of a speedy trial is raised on appeal after judgments of conviction, and cases such as Harris v. Municipal Court (1930), supra, 209 Cal. 55, where the defendant seeks a writ of mandate on the same ground but before the commencement of trial.

There is no discussion in the latter cases of the effect of

article VI,

section 4%, for the simple reason that there had been no trial and hence no judgment of conviction. Harris and its legitimate progeny are good law, but they are irrelevant to the problem now before us. The conclusion we reach today is in accord with a number of prior expressions of judicial opinion in California. As early as 1893 a justice of this court pointed the way to a sound solution of the problem. Concurring in People v. Douglass (1893) 100 Cal. 1, 6 [34 P. 490], Mr. Justice De Haven stated that “even if it appeared that the court erred in not granting defendant’s motion for a dismissal of the prosecution because of the failure to place him on trial within the time specified in

section 1382 of the Penal Code, still, that would not be sufficient ground for a reversal of the judgment. A judgment should not be reversed for such an error, except in a case where, if the motion had been granted, the statute of limitations would have been a bar to a new information or indictment for the same offense.

In other cases the remedy for a defendant whose motion for a dismissal has been improperly denied is an application for a writ of habeas corpus [or, as has been noted, of mandate or prohibition] before judgment of conviction.” (Italics added.) In a ease where the statute of limitations would have been a bar to a new prosecution if the motion to dismiss had been granted, the erroneous denial of the motion would be prejudicial to the defendant. In line with this reasoning of Justice De Haven are two decisions of the District Court of Appeal. In People v.

Grace (1928) 88 Cal.App. 222 [263 P. 306], the court reviewed on appeal from a judgment of conviction the defendant’s contention that he had been denied his right to a speedy trial, and concluded (at p. 231 [4] of 88 Cal.App.), “Conceding, however, that the court erred in continuing the trial beyond the sixty-day period, we are satisfied that no miscarriage of justice resulted by reason of such delay. The error, if any, is one of procedure and readily comes within the purview of”

article VI,

section 4%, of our Constitution. More recently, the court in People v. McClure (1955) 133 Cal.App.2d 631, 634 [284 P.2d 887], rejected as unsubstantiated by the record the defendant’s contention that “he was prejudiced by lack of a speedy trial, in that over 60 days elapsed between the filing of the information and the commencement of the trial” (italics added). (See also People v.

Weiss (1958) 50 Cal.2d 535, 558 [12] [327 P.2d 527], where we held that a delay in bringing the defendants to trial beyond the statutory period was justified by the requirements of the orderly administration of justice and that “defendants were not thereby prejudiced. ’ ’) No essential difference appears in this respect, moreover, between a denial of the constitutional and statutory right to a speedy trial and a denial of the constitutional and statutory right to a speedy arraignment.

Article I,

section 8, of the California Constitution commands that a person charged with a felony “shall, without unnecessary delay, be taken before a magistrate. ...” Penal Code

section 825 is equally emphatic in declaring that “The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest. . . .” (See also Pen. Code, § 849.) The policy underlying the latter provisions and those guaranteeing a speedy trial are held to be the same (People v. Goss (1961) 193 Cal.App.2d 720, 724 [2] [14 Cal.Rptr. 569]; cf. People v.

Aguirre (1960) 181 Cal.App.2d 577, 580 [1] [5 Cal.Rptr. 477]); and it is well settled that “A violation of a defendant’s right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof.’’ (People v. Combes (1961) 56 Cal.2d 135, 142 [1] [14 Cal.Rptr. 4, 363 P.2d 4]; accord, People v. Stroble (1951) 36 Cal.2d 615, 626-627 [7] [226 P.2d 330], affd. sub. nom. Stroble v.

California (1952) 343 U.S. 181, 196-197 [72 S.Ct. 599, 96 L.Ed. 872, 884]; People v. Davis (1960) 178 Cal.App.2d 887, 894-895 [6] [3 Cal.Rptr. 465]; People v. Lollis (1960) 177 Cal.App.2d 665, 671 [12] [2 Cal.Rptr. 420], and cases there cited.) In the case at bench defendant has not shown—nor does it appear that he could show-—that he was in any way prejudiced by the setting of his trial for a date approximately two months beyond the last day to which he had consented.

At the time of his objection to such setting, more than seven months had already elapsed since the filing of the information, due in most part to numerous continuances granted at defendant’s request or with his consent; and defendant fails to demonstrate how a further delay of less than one-third of that duration could have affected in any respect the fairness of his subsequent trial. Moreover, the evidence introduced at that trial was such that the delay cannot reasonably be said to have resulted in a miscarriage of justice (Cal. Const., art. VI, § 4%).

Defendant next contends that the deputy district attorney was guilty of prejudicial misconduct. The principal complaint is based on the following sequence of events: Prior to trial defendant had offered to plead guilty, first to manslaughter and later to second degree murder. These offers were rejected by the prosecution.

In connection therewith counsel for defendant had submitted an affidavit to the trial court which stated in part “that affiant indicated that affiant would be prepared to enter a plea of second degree murder if the same were acceptable to the prosecution.” This affidavit was signed by defendant’s counsel as the “affiant,” but directly below the quoted statement appeared the following declaration signed by defendant: “I hereby certify under penalty of perjury that the above affidavit is true and correct to the best of my knowledge, and I hereby accept the same as my own and adopt the same as my own statement.” At the trial this affidavit, over defendant’s objection, was introduced into evidence by the prosecutor and was commented upon in the latter’s argument to the jury.

In the absence of statute, it has been held in California that an offer to plead guilty is admissible in evidence (People v. Boyd (1924) 67 Cal.App. 292, 302 [10] - 303 [13] [227 P. 783] (opinion of Supreme Court on denial of hearing); People v. Cooper (1947) 81 Cal.App.2d 110, 117-118 [183 P.2d 67]). It has also been held that a plea of guilty, later withdrawn, is admissible (People v. Ivy (1958) 163 Cal.App.2d 436, 438-440 [1] [329 P.2d 505]; People v. Snell (1929) 96 Cal.App. 657, 662-663 [4] [274 P. 560]).

The underlying theory of these eases is that by his plea or offer to plead guilty the defendant has made, in fact, an admission of guilt. In jurisdictions other than California the cases are in conflict. (See 86 A.L.R.2d 326 et seq. (1961).) All of the California cases cited above, however, were either decided before Penal Code sections 1192.1 to 1192.4 were enacted (in 1955 and 1957) or failed to consider the relevance of those sections.

Section 1192.1 provides that if a defendant is charged with a crime divided into degrees, upon a plea of guilty, when consented to by the prosecutor and approved by the court, the plea may specify the degree and the defendant cannot be thereafter punished for a higher degree.

Section 1192.2 makes the same rule applicable to pleas of guilty before a committing magistrate.

Section 1192.3 provides that in eases where the jury can recommend or select among various punishments, the plea of guilty may specify the related punishment and, if accepted by the prosecution and approved by the court, no more severe punishment than that specified in the plea can be imposed.

Section 1192.4 (added to the Penal Code in 1957; Stats. 1957, ch. 1297, § 4, p. 2616) was passed for the purpose of supplementing the foregoing three sections. It provides: “If the defendant’s plea of guilty pursuant to

section 1192.1, 1192.2 or 1192.3 of this code be not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil or special action or proceeding of any nature, including proceedings before agencies, commissions, boards and tribunals." Whatever merit there may have been in the above cited eases holding that a withdrawn plea or offer to plead guilty to a lesser offense was admissible as an admission of guilt, that rule must be re-examined in the light of the adoption of

section 1192.4. By enacting this

section the Legislature has decided, just as it did many years ago in civil eases by prohibiting the introduction into evidence of offers to compromise (Code Civ. Proc., § 2078), that it is in the public interest that rejected pleas of guilty to a lesser degree of crime shall not be admissible in evidence. The obvious purpose of the

section is to promote the public interest by encouraging the settlement of criminal cases without the necessity of a trial. That policy is equally applicable to the situation now before us, where the issue is the admissibility of a rejected offer to plead guilty to a lesser degree of crime. If it is in the public interest to deny admissibility to a plea of guilty to a lesser degree that was formally entered but is "deemed withdrawn" because it was "not accepted by the prosecuting attorney" (Pen.

Code, §1192.4), it is equally in the public interest to deny admissibility to evidence of an offer to plead guilty to the same lesser degree that was "not accepted by the prosecuting attorney." The earlier cases holding such offers to be admissible are therefore no longer controlling. We hold that evidence of the subject offer was inadmissible, and hence that it was improper for the prosecutor to comment upon it in his argument to the jury. Such conduct should not recur in the future.

But in the case at bench we are of the opinion, after a review of the entire cause including the evidence, that no miscarriage of justice resulted. (Cal. Const., art. VI, § 4y2; People v. Watson (1956) 46 Cal.2d 818, 835-837 [12] [299 P.2d 243].) The affidavit embodying the offer was but a small item in the mass of credible, incriminating evidence introduced by the prosecution during this lengthy trial, and the prosecutor’s brief comment thereon "was at most a minor part of his argument and must be deemed nonprejudicial" (People v.

Pike (1962) 58 Cal.2d 70, 96 [28] [22 Cal.Rptr. 664, 372 P.2d 656]; accord, People v. Garner (1961) 57 Cal.2d 135, 156 [23] [18 Cal.Rptr. 40, 367 P.2d 680]; People v. Lane (1961) 56 Cal.2d 773, 787 [16] [16 Cal.Rptr. 801, 366 P.2d 57]). Other claims of error are devoid of support in the record and require no discussion. The judgments are affirmed. Gibson, C. J., Traynor, J., McComb, J., and White, J., concurred.

The clerk’s transcript erroneously recites that the latter continuance was ordered “at the request of the defendant. . . .” But defendant failed to offer a proposed correction of this entry, and the trial judge certified the transcript accordingly. (Oal. Buies of Court, rule 35(e).) As observed in Harris v.

Municipal Court (1930) 209 Cal. 55, 60 [1] [285 P. 699], this constitutional provision “reflects the letter and spirit of” the Sixth Amendment to the United States Constitution, applicable to the federal courts, which declares that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .” And

section 686, subdivision 1, of our Penal Code reiterates that a defendant in a criminal case is “entitled” to “a speedy and public trial.” Although defendant had the right under Penal Code

section 1382 to be brought to trial within 10 days after Augut 25, 1960, it was not until much later (i.e., October 25, 1960) that he made his motion to dismiss. Trial was scheduled to begin in a few days (i.e., October 31, 1960). Such tardiness in moving to dismiss appears unreasonable and should not be encouraged.

On the contrary, it does not seem unfair to require the defendant in such cases to move for dismissal (if he desires to do so) as soon as is reasonably possible after the expiration of the allowable delay—rather than to permit him to wait until just before trial, by which time prospective jurors may be assembled, the witnesses subpoenaed and in attendance, and the proceedings ready to begin.

Article VI,

section 4>, declares: "No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall he of the opinion that the error complained of has resulted in a miscarriage of justice.” Similarly, in a misdemeanor prosecution the erroneous denial oí such a motion to dismiss would be rendered prejudicial by Penal Code

section 1387, which provides in pertinent part that an order oí dismissal (under § 1382) “is a bar to any other prosecution for the same offense if it is a misdemeanor___.” (See, e.g., People v. Molinari (1937) 23 Cal.App.2d Supp. 761, 767 [5] [67 P.2d 767].) Manifestly, we are not here dealing with the denial of a procedural requisite which goes to the acquirement of jurisdiction over the prosecution, such as was involved in People v. Elliot (1960) 54 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225]. In Elliot we noted (p. 506 [19]) that

article VI,

section 4% “was not designed to ‘abrogate the guaranties accorded ... by other parts of the same constitution,’ ” but this holding is not in point as to the ease at bench. The Elliot decision properly enforces legislation adopted pursuant to California Constitution,

article I,

section 8, which authorizes prosecution of a criminal action by information instead of by indictment and by essential implication requires the enactment of measures implementing that alternative procedure. Elliot deals only with the mandatory requirements for a valid “examination and commitment by a magistrate” as a jurisdictional basis for prosecution of a criminal action by that procedure instead of by indictment. Retired Justice of the Supreme Court sitting pro tempore under assignment by the Chairman of the Judicial Council.