P. v. Wallick

Filed 6/26/07 P. v. Wallick CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:^*

Appellant Rodney L. Wallick appeals from the trial courts denial of his motion to dismiss his case for want of prosecution pursuant to Penal Code section 1382, subdivision (a)(2).^[1]

We appointed counsel to represent him on this appeal. After examination of the record, counsel filed an Opening Brief which contained an acknowledgment that she had been unable to find any arguable issues.

On March 20, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On April 13, 2007, appellant filed a supplemental brief in which he asserts that the trial court violated his rights to due process and a speedy trial by continuing his case over his objection. He also argues that the error was not harmless beyond a reasonable doubt. He maintains that the judgment must be reversed as to his conviction for violating sections 459 (burglary) and 496, subdivision (a) (receiving stolen property).

On July 3, 2001, appellants trial counsel asked for a continuance because, as the court was aware, he was starting another trial that would conflict with appellants trial. The trial court stated it would find good cause because you are going to be involved in the trial that weve scheduled already thats going to take approximately a month. Counsel asked to have appellants matter put over until August 6, 2001. After the court stated that the case was remanded to that date, appellant addressed the court, stating, How is it that my time is just being wiped like this without me agreeing to it or saying anything like that? Ive been incarcerated now for six months on this, waiting for something to happen to go to trial or to do something of that nature. And its put off again and again without my consent.

The trial court replied that the person whose trial was taking precedence had been in custody almost a year without having his trial. The court was trying to get the older cases taken care of first. When appellant asked if he had a right to due process in a legal amount of time according to the law, the court answered that he did. However, the court was finding good cause that the other trial takes precedence over your trial because hes been held longer than you, and I can only do one trial at a time. Appellant replied, Okay and added that he just wanted this fact on the record.

On August 28, 2006, appellant filed a post-conviction motion to dismiss claiming that he was denied the statutory right to a speedy trial as guaranteed by section 1382, subdivision (a)(2) because he was not brought to trial within 60 days after the filing of the information and there was no good cause for the delay beyond this period of time. The motion was denied.

The right to a speedy trial is a fundamental right guaranteed by the federal and state Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15; Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776 (Rhinehart); see also 686, subd. (1).) Section 1382 implements an accuseds right to a speedy trial. (Rhinehart, supra, at p. 776.) That section provides in pertinent part that, (a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: []  . . .  [] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendants arraignment on an . . . information, . . . or, in case the cause is to be tried again following a mistrial, . . . within 60 days after the mistrial has been declared . . . . ( 1382, subd. (a)(2).) A trial courts determination of good cause for a continuance in a statutory speedy trial case is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 852-853; Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1275.)

Because appellant raises the denial of his statutory right to a speedy trial after judgment he must show actual prejudice flowed from the delay. [A] defendant [who] seeks pretrial relief [for the denial of his statutory right to a speedy trial] is not required to affirmatively show that he [has] been prejudiced by the delay. [Citations.] Upon appellate review following conviction, however, a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice: this court, in reviewing the judgment of conviction, must weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself. [Citation.] (People v. Johnson (1980) 26 Cal.3d 557, 574.)

Appellant makes only vague assertions of prejudice in his supplemental brief, stating that there is no basis for concluding that the continuance over appellants objection, due process violation and trial delay surely did not contribute to the holding order, and other deficiencies occurred thereafter. The record itself contains no evidence that any cognizable harm occurred because of the one-month continuance. Because no particular prejudice has been shown, we cannot reverse the judgment.

Moreover, the California Supreme Court has held: A continuance granted at the request of counsel normally constitutes . . . good cause (People v. Kirkpatrick (1972) 7 Cal.3d 480, 486 []), at least in the absence of evidence showing incompetency of counsel (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781 []) or circumstances where counsels request for a continuance is prompted only by the need to service other clients and the defendant himself objects to the delay. (People v. Johnson [supra] 26 Cal.3d. [at pp.] 566-569 [].) (People v. Wright (1990) 52 Cal.3d 367, 389.) Here, there was no incompetency of counsel, since counsels motion was occasioned by, apparently, the trial courts order that a one-month trial in another case had to begin immediately. We see no abuse of discretion in this circumstance.

Finally, we have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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^* BOREN, P. J., DOI TODD, J., CHAVEZ, J.

^[1] All further references are to the Penal Code unless otherwise indicated.