Jones v. Superior Court , 3 Cal. 3d 734 ( 1970 )

BURKE, J., Dissenting.

The majority hold that petitioner is entitled to have the charge against him for sale of heroin dismissed on the ground that he was denied a speedy trial as a result of the 19-month pre-arrest delay following the filing of the complaint. I cannot agree and instead concur with the action of the trial court in denying the motion to dismiss the information and of the Court of Appeal in denying the instant petition.

The facts recited in the opening paragraphs of the majority opinion are substantially correct and need not be repeated here.

I note initially that the information was filed well within the applicable statute of limitations (Pen. Code, § 800), which “is usually considered the primary guarantee against bringing overly stale criminal charges.” (United States v. Ewell, 383 U.S. 116, 122 [15 L.Ed.2d 627, 632, 86 S.Ct. 773].) Such legislative judgment is “clearly entitled to great weight in determining what constitutes unreasonable delay” (see Dickey v. Florida, 398 U.S. 30, 47 [26 L.Ed.2d 26, 37, 90 S.Ct. 1564] [concurring opinion]), although the statutory limits are not necessarily coextensive with the limits set by the federal speedy trial clause (see Dickey v. Florida, supra, 398 U.S. 30, 32, fn. 3, 37-38, 47 [26 L.Ed.2d 26, 29, 31-32, 37]) or by the California speedy trial guarantee. ¹

The majority in the instant case recognize some of the above principles but conclude that petitioner was denied a speedy trial because, according to the majority, he was prejudiced by the pre-arrest delay following the filing of the complaint and the delay was without justification. The majority state, “The most obvious effect of the long pre-arrest delay was to seriously impair his ability to recall and to secure evidence of his activities at the time of the events in question. . . .” The majority apparently assume such impairment as a matter of law, since there is no finding by the trial court or concession by respondent of such impairment. Whether there was such impairment manifestly is highly speculative even if petitioner had been unaware of the fact he was wanted for the crime until his arrest. And here, as the majority recognize “petitioner knew in June 1968 that the police suspected him of a narcotics offense [namely sale of heroin].” But, state the majority, he “did not know when or how they believed the crime was committed . . . .” The quoted statement, however, ignores an express finding by the trial court and certain evidence indicating petitioner did have such knowledge.

The trial court expressly found that petitioner “knew the police were seeking him with reference to the sale of heroin on or about . . . May 7th, 1968.” (Italics added.) Officer Curtis Fesler testified that during his telephone conversation with petitioner during the latter part of June 1968 he told petitioner he was looking for him with reference to the sale of heroin. ² Although Fesler did not recall telling petitioner the specific date of the sale, other evidence indicated petitioner knew the approximate date of. the* sale. Theodous Simmons, petitioner’s counselor at the Community Skills Center, was asked, “Do you recall exactly what you told [petitioner on June 10, 1968] why the police were looking for him,” and Simmons replied, “They had alleged that he was involved in the selling of heroin to an undercover agent . . . .” Simmons further testified that petitioner stated “he was not involved and was acquainted with the man the police were looking for.” (Italics added.) From the italicized statement the trier of fact could reasonably infer that petitioner knew of the transaction referred to by Simmons and, in the absence of satisfactory proof that the transaction was one other than the May 7, 1968 sale testified to by Undercover Agent Harry Andrews, the trier of fact could properly conclude that petitioner had knowledge of that particular sale and was aware of the approximate date thereof. The foregoing testimony also shows that petitioner knew the police believed the sale was of heroin and was to an undercover agent and that, contrary to the majority’s statement, he thus had some knowledge of “how [the police] believed the offense was committed.” Furthermore, the trial court found, based on substantial evidence,³ that petitioner falsely told Simmons that petitioner had gone to the police station with his attorney. From the fact petitioner lied in this regard the trier of fact was also warranted in inferring that petitioner had some knowledge of the crime and surrounding facts.

It thus appears that within less than five weeks of the crime petitioner knew he was being sought by the police for sale of heroin “on or about” May 7, 1968. There can be little doubt that as a result of such knowledge he knew he might be called upon in the future to account for his actions around that date and it is reasonable to assume that if there were any persons who might have aided him he would have noted them for possible future help. (See, e.g., United States v. Scully, 415 F.2d 680, 683.) Until the statute of limitations had expired, he could not safely assume that no information would be filed charging him with the crime.

The record further shows that undercover agent Andrews had no difficulty in recalling the sale of heroin by petitioner to him (see, e.g., United States v. Scully, supra, 415 F.2d 680, 683; United States v. Feinberg, 383 F.2d 60, 66), and so far as appears the woman who was present at the sale was still available and might be able to identify the seller.

Under the circumstances in my opinion it appears that petitioner was not prejudiced by the pre-arrest delay. “[P]rejudice seems to be an essential element of speedy trial violations.” (See Dickey v. Florida, supra, 398 U.S. 30, 53 [26 L.Ed.2d 26, 41] [concurring opinion].) Accordingly, petitioner has not been denied a speedy trial irrespective of whether there was any justification for the delay. I would deny the writ.

McComb, J., concurred.

The petition of the real party in interest for a rehearing was denied February 10, 1971.

1 The Sixth Amendment of the federal Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” The Sixth Amendment right to a speedy trial is enforceable against the states by virtue of the Fourteenth Amendment. (Klopfer v. North Carolina, 386 U.S. 213 [18 L.Ed.2d 1, 87 S.Ct. 988].)

Article 1, section 13, of the California Constitution provides, “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial . . . .” (See also Pen. Code, § 686.)

2 Petitioner denied that Fesler told him the police were looking for him for the sale of heroin; according to petitioner, Fesler asked him to “come in to talk to him concerning some narcotics.” This conflict in testimony was, of course, for the trial court to resolve.

3 Simmons testified that petitioner told him on June 24, 1968, that he reported to the police department with his lawyer. Petitioner denied having so reported, but the trial court did not believe him. Both Officer Fesler and petitioner testified that following the telephone conversation petitioner did not go to see Fesler.