Townsend v. Superior Court , 15 Cal. 3d 774 ( 1975 )

MOSK, J.

I dissent.

I agree with Justice Tobriner’s dissent in general and reach the same conclusion: that defendant has been denied his right to a speedy trial. Implicit in the majority opinion is the concept that convenience of the court, condition of the calendar and workload of counsel all take precedence over the constitutional and statutory requirements of a speedy trial. The result is a gross inversion of priorities.

While making common cause with my dissenting colleague’s conclusion, I do not concede that counsel has the authority incident to the power to control trial tactics, to waive the statutory speedy trial provisions, particularly when the waiver by counsel is made over the express objections of defendant.

In Linsk v. Linsk (1969) 70 Cal.2d 272 [74 Cal.Rptr. 544, 449 P.2d 760], this court in a unanimous opinion discussed in depth the authority of counsel. While Linsk was a civil case, it dealt with an unauthorized stipulation by counsel and thus is apposite to the instant problem. Construing the statutory declaration that an attorney may bind his client “in any of the steps of an action or proceeding” (Code Civ. Proc., § 283), we held that counsel is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action, but not to impair the client’s substantial rights (id., at p. 276).

We explicated the issue in this manner: “The dichotomy in the foregoing cases appears to relate to whether the attorney has relinquished a substantial right of his client in entering into a stipulation on his behalf. If counsel merely employs his best discretion in protecting the client’s rights and achieving the client’s fundamental goals, his authority to proceed in any appropriate manner has been unquestioned. On the other hand, if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.” (Id., at p. 278.)

Thus the question before us is whether counsel forfeited “a substantial right of his client contrary to express instructions.” I fail to see how an objective analysis could reach any conclusion other than that defendant’s substantial rights were adversely affected when he was compelled to languish in jail confinement for more than 100 days following arraignment without being brought to trial. It is undenied that defendant vehemently protested at every available opportunity, in the presence of his counsel and the court.

Fundamental constitutional rights are not susceptible of waiver except by the defendant personally. (E.g., In re Mosley (1970) 1 Cal.3d 913, 924 [83 Cal.Rptr. 809, 464 P.2d 473] [right to plead not guilty and stand trial]; People v. Holmes (1960) 54 Cal.2d 442, 444 [5 Cal.Rptr. 871, 353 P.2d 583] [jury trial]; In re Tahl (1969) 1 Cal.3d 122, 132 [81 Cal.Rptr. 577, 460 P.2d 449] [privilege against compulsoiy self-incrimination; trial by jury; right to confront accusers]; People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710] [right to testify].) Article I, section 15, of our Constitution—surely entitled to as much respect as other provisions of our bill of rights—guarantees to a defendant in a criminal case “the right to a speedy public trial.” Penal Code section 686, subdivision 1, reiterates the defendant’s entitlement to “a speedy and public trial.”

It is true that “speedy” is a comparative term, not defined with specificity in the Constitution. To ascertain its outer limits, then, we turn to Penal Code section 1382, which states that in the absence of good cause the trial court must dismiss an action not brought to trial in the superior court within 60 days after the finding of the indictment or filing of the information.¹

In People v. Wilson (1963) 60 Cal.2d 139, 145 [32 Cal.Rptr. 44, 383 P.2d 452], and People v. Godlewski (1943) 22 Cal.2d 677, 682 [140 P.2d 381], this court declared that the Penal Code provisions cited above are “supplementary to and a construction of’ the Constitution. In Harris v. Municipal Court (1930) 209 Cal. 55, 61 [285 P. 699], we referred to “the legislative interpretation of the constitutional provision,” and in Sykes v. Superior Court (1973) 9 Cal.3d 83, 89 [106 Cal.Rptr. 786, 507 P.2d 90], failure to comply with Penal Code section 1382 was found to be “prima facie in violation of a defendant’s constitutional right.” (Fn. omitted.)

Thus I conclude that the speedy trial guaranteed by the Constitution, and explicated in the Penal Code, is a substantial right of the defendant. For a waiver of that right to be valid, it must be made by the defendant personally and not by a surrogate.²

Since the defendant did not personally waive his right to a speedy trial, and since the statute interpreting the outer limits of the constitutional right to a speedy trial was violated over defendant’s persistent objections, I would issue the writ.

1 In the measure known as the Speedy Trial Act of 1974, Congress indicated that the Sixth Amendment guarantee of a speedy trial requires “the trial of the defendant shall commence within sixty days from arraignment on the information or indictment. . . .” (18 U.S.C., ch. 208, § 3161, subd. (c).) Indeed, even if defendant or his counsel request a continuance the federal act requires the trial court to make a finding that the “ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial” (18 U.S.C., ch. 208, § 3161, subd. (h)(8)(A)). Subsequent sections suggest the primary factor to be considered in evaluating the ends of justice is the unusual or complex nature of the case.

2 Finding bad faith by the defendant, this court permitted counsel to waive defendant’s speedy trial rights in People v. Floyd (1970) 1 Cal.3d 694, 707 [83 Cal.Rptr. 608, 464 P.2d 64]; but in that case we also gave an unmistakable signal that ordinarily “the attorney’s consent to the continuances over the client’s objection would not constitute a waiver of the right to speedy trial” (Id., at p. 706).