Right to speedy trial

The Right to Speedy Trial encompasses several constitutional and statutory rights.

Preliminary Hearing Rights

Garcia v. Superior Court (2020) 47 Cal.App.5th 631.

Constitutional right against pre-accusation delay

Pre-accusation delay is delay between the crime itself and the arrest or charging of the defendant. This is subject to the Due Process clauses of the Fourteenth Amendment to the United States Constitution and the California Constitution, article I, section 7.

Constitutional right against post-accusation delay

Post-accusation delay is delay between arrest of the defendant or filing of the accusations and trial. This is subject to the speedy trial clauses of the Sixth Amendment to the United States Constitution and California Constitution article I, section 15.

Federal speedy trial right

Barker v. Wingo set out a multi-factor balancing test to determine if a case should be dismissed because of post-accusation delay. The four factors are "Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (407 U.S. at p. 530, fn. omitted.)

Statutory rights

Statute of Limitations

Punishable by life: No statute of limitations under Penal Code section 799.

Embezzlement of public money: No statute of limitations under Penal Code section 799.

Felony 290 offense: 10 years under Penal Code section 801.1

Maximum base term of eight years or more: Six years under Penal Code section 800.

PC368, including misdemeanors: Five years under Penal Code section 801.6

VC20001(b)(2): Three years or one year, or within one year after ID, but no later than six years after date of offense under Penal Code section 802, subdivision (j).

PC192(c)(1): Three years or one year, or within one year after ID, but no later than six years after date of offense under Penal Code section 802, subdivision (k).

PC192(c)(2): Three years or one year, or within one year after ID, but no later than six years after date of offense under Penal Code section 802, subdivision (k).

State prison or 1170(h) of less than eight years: Three years under Penal Code section 801.

Misdemeanors: One year under Penal Code section 802.

PC801.5 and PC803(c): four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later.

PC803(d): Extends by maximum of three years for time defendant if out-of-state

Grand theft and forgery have four-year statute of limitations. (People v. Price (2007) 155 Cal.App.4th 987, 996.)

prosecution for an offense is commenced when an indictment or information is filed; a complaint is filed charging a misdemeanor or infraction; a case is certified to the superior court; or an arrest or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information or complaint. (People v. Price (2007) 155 Cal.App.4th 987, 997.)

People v. Traylor (2009) 46 Cal.4th 1205

Statute of limitations is governed by upper term without enhancements.

However, alternate sentencing schemes are not enhancements. So premediated willful and deliberate attempted murder has no statute of limitations, while attempted murder has a six-year statute of limitations. (Anthony v. Superior Court (2010) 188 Cal.App.4th 700.)

So if case goes to trial on premeditated willful and deliberate attempted murder after six years, and jury finds no premeditation, then conviction on attempted murder must be vacated because it's beyond statute of limitations. (People v. Sedillo (2015) 235 Cal.App.4th 1037.)

An offense that is a felony instead of a misdemeanor because of a prior conviction has a felony statute of limitations. (People v. Johnson (2006) 145 Cal.App.4th 895; People v. McSherry (2006) 143 Cal.App.4th 598.)

A wobbler has a felony statute of limitations regardless of it is charged as a misdemeanor. (People v. Mincey (1992) 2 Cal.4th 408; People v. Crabtree (2009) 169 Cal.App.4th 1293.)

If convicted of lesser included offense that is misdemeanor, misdemeanor statute of limitations applies. (People v. Crabtree (2009) 169 Cal.App.4th 1293.)

A 25-to-life sentence under Three Strikes is considered an offender-based sentencing scheme, so the statute of limitations for the offenses still applies. (People v. Turner (2005) 134 Cal.App.4th 1591.)

A defendant can waive statute of limitations to allow a plea bargain on a lesser-included offense that is time-barred. (Cowan v. Superior Court (1996) 14 Cal.4th 367.) "The court need merely inform the defendant in some fashion that the charge is, or may be, time-barred, and elicit a simple waiver of the bar. Absent a contrary indication, the trial court and, on appeal, the reviewing court may presume that a represented defendant has consulted with counsel. A defendant who has waived counsel and elected self-representation obviously need not consult counsel. Moreover, a defendant's waiver of the statute of limitations to a lesser offense as part of a plea agreement or to obtain instructions on that offense would be for the defendant's benefit and would not handicap the defense." (Cowan v. Superior Court (1996) 14 Cal.4th 367, 373.) "To avoid the problem that arose in this case, we remind trial courts and prosecutors that whenever a defendant seeks to plead guilty to, or a court *377 considers whether to instruct the jury on, a lesser offense, they should determine whether there may be a problem with the statute of limitations regarding that offense. If so, the court should elicit a waiver of the statute as a condition of the guilty plea or giving the instruction. This should be an easy process. The record need merely reflect in some fashion that the defendant is aware that the offense is, or might be, time-barred, and the defendant has waived the statute of limitations." Cowan v. Superior Court (1996) 14 Cal.4th 367, 376–377.)

Generally, the day on which the crime has been committed is excluded in the computation of time under a statute of limitations. 19 Cal. Jur. 3d Criminal Law: Defenses § 26

The rule seems generally recognized, though with some dissent, that, in computing time, the day of commission of the offense is excluded. (People v. Twedt (1934) 1 Cal.2d 392, 399 [35 P.2d 324, 327]) The last day of the period was the day on which the indictment was returned, and must be included in calculating the time. (People v. Hill (1934) 2 Cal.App.2d 141, 147.)

"The filing of a criminal complaint does not generally commence the prosecution of a felony for statute of limitation purposes and, unless a formal arrest warrant issues or the case is certified to the superior court (see § 859a), the statute of limitation ordinarily continues to run until an information is filed. (People v. Terry (2005) 127 Cal.App.4th 750, 764.)

The statute of limitations can change while the old statute of limitations is running. (People v. Hollie (2010) 180 Cal.App.4th 1262; People v. Masry (1986) 179 Cal. App. 3d 1149.)

Right to speedy trial

Offense	Deadline	Code
In-custody at arraignment for misdemeanor	30 days after arraignment or entry of plea	PC1382(a)(3)
Out-of-custody at arraignment for misdemeanor	45 days after arraignment or entry of plea	PC1382(a)(3)
Felony	60 days after arraignment on information or indictment	PC1382(a)(2)

FTA results in new statutory period, regardless of reason such as mistake of date. (People v. Anderson (1954) 126 Cal.App.2d 702; People v. Heath (1981) 125 Cal.App.3d Supp. 1). However, failure to transport an in-custody defendant does not toll running of period. (Jackson v. Superior Court (1991) 230 Cal.App.3d 1391.)

977. Beasley v. Municipal Court (1973) 32 Cal.App.3d 1020; Turner v. Municipal Court (1982) 131 Cal.App.3d 643.

Can withdraw time waiver and do trial within 30 days, even if out-of-custody arraignment and withdrawal would result in shorter period than 45 days. (Arias v. Superior Court (2008) 167 Cal.App.4th 1)

Quashing venire is not a mistrial and does not toll running of period. (Perryman v. Superior Court (2006) 141 Cal.App.4th 767.)

For misdemeanors, previous and later changes in custody is irrelevant. (Pickett v. Municipal Court (1970) 12 Cal.App.3d 1158, 1161, fn.1)

COVID-19 as good cause

Hernandez-Valenzuela v. Superior Court (Mar. 3., 2022, A163992) [1]

Felony

Sykes v. Superior Court (1973) 9 Cal.3d 83; Jones v. Superior Court (1970) 3 Cal.3d 734

Baustert v. Superior Court (2005) 129 Cal.App.4th 1269

Court can require the withdrawal of time waiver be made by written notice with two days' notice. (Daws v. Superior Court (2019) 42 Cal.App.5th 81.) "Without sufficient notice in advance, the prosecutor—who in many situations will be managing a large inventory of misdemeanor prosecutions—may be forced to agree to a trial date without a full understanding of his or her own availability, or the availability of witnesses." (Daws v. Superior Court (2019) 42 Cal.App.5th 81, 87.)

10-day trailing period

The 10–day period does not begin to run until the defendant announces ready for trial on the date to which the trial was continued, or on a later date to which the defendant impliedly or expressly consented if the case was again continued. (Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 488–499.)

10 days start from "the defendant's actual readiness for immediate trial, regardless whether an explicit announcement of readiness is made." (Pogosyan v. Appellate Division (2018) 26 Cal.App.5th 1028, 1032.)

10-day trailing period starts from last day of trial. (People v. Griffin (1991) 235 Cal.App.3d 1740.)

But can stipulate to a true last day, meaning agreement as to 10th day of 10-day period. (Bailon v. Superior Court (2002) 98 Cal.App.4th 1331.)

Barsamyan v. Appellate Division (2008) 44 Cal.4th 960

Townsend. (See the discussion of Townsend, Johnson, and Sutton, However, dismissal is not a remedy provided for violation of the time limits of § 1050, and thus the defendant is not entitled to dismissal based upon an unjustified delay unless the time limits of § 1382 are exceeded. (People v. Arnold (1980) 105 Cal.App.3d 456; People v. Hernandez (1979) 97 Cal.App.3d 451.)

Continuances to obtain witnesses

The rule established by People v. Wilson, and approved by the California Supreme Court in Owens v. Superior Court is:

"[in] order to invoke the discretion of the trial court to grant a continuance to obtain the presence of a witness, the moving party has the burden of showing  [*251]  that the following legal criteria have been satisfied: (1) That the movant has exercised due diligence in an attempt to secure the attendance of the witness at the trial by legal means; (2) that the expected [****23]  testimony is material; (3) that it is not merely cumulative; (4) that it can be obtained within a reasonable time; and (5) that the facts to which the witness will testify cannot otherwise be proven." ( People v. Wilson (1965) 235 Cal.App.2d 266, 273 [45 Cal.Rptr. 267], citations omitted. Cf. Ford v. Superior Court (1911) 17 Cal.App. 1, 10-11 [118 P. 96].) (Owens v. Superior Court of Los Angeles County (1980) 28 Cal.3d 238, 250-251, quoting People v. Wilson (1965) 235 Cal.App.2d 266, 273.)

People v. Shane (2004) 115 Cal.App.4th 196

People v. Howard (1992) 1 Cal.4th 1132 The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. (People v. Laursen (1972) 8 Cal.3d 192, 204 [104 Cal. Rptr. 425, 501 P.2d 1145]; see also People v. Grant (1988) 45 Cal.3d 829, 844 [248 Cal. Rptr. 444, 755 P.2d 894].)

Brown v. Superior Court (1987) 189 Cal.App.3d 260

People v. Brown (1956) 141 Cal.App.2d 299

(Brown v. Superior Court (1987) 189 Cal.App.3d 250; People v. Avila (2005) 131 Cal.App.4th 163.)

“The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case....’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures' to stop the witness from disappearing. [Citation.]” (People v. Wilson, supra, 36 Cal.4th at p. 342, quoting People v. Hovey (1988) 44 Cal.3d 543, 564.) People v. Smith (Cal. Ct. App., May 12, 2008, No. E041765) 2008 WL 2010374, at *10

Law enforcement officer witnesses

Trial court did not abuse its discretion in determining that absence of officer witness was good cause for continuance of criminal trial beyond statutory deadline, where prosecutor issued subpoena to officer through police department in accordance with statutory procedure, officer apparently did not receive subpoena before going on vacation, and prosecutor was not informed by police department of officer's unavailability until day before trial began; officer was arresting officer in driving under influence (DUI) case, and officer's anticipated return was in few weeks.  Jensen v. Superior Court (App. 2 Dist. 2008) 72 Cal.Rptr.3d 594, 160 Cal.App.4th 266, rehearing denied, review denied.  Criminal Law Key Number 594(1)

Sheriff is not authorized to delegate to another peace officer, other than one of his deputies, his duty of serving subpoenas, although service of subpoena which is actually made by another peace officer is valid.  36 Op.Atty.Gen. 4.

Witness subpoena for police officer, received weeks before trial date by agent of police department in charge of issuing subpoenas, was properly served with respect to responsibilities of issuing prosecutor, as supported continuance of trial upon notice that officer had gone on vacation, even if agent never gave subpoena to officer and officer never knew of subpoena.  Jensen v. Superior Court (App. 2 Dist. 2008) 72 Cal.Rptr.3d 594, 160 Cal.App.4th 266, rehearing denied, review denied.  Criminal Law Key Number 598(2)

Good cause

People v. Ferrer (2010) 184 Cal.App.4th 873

People v. Brown (2023) 14 Cal.5th 530

170.6 of last available judge. People v. Reed (1982) 133 Cal.App.3d Supp. 7; Gomez v. Municipal Court (1985) 169 Cal.App.3d 425; Bryant v. Superior Court (1986) 186 Cal.App.3d 483.)

Unavailable witness. People v. Bracamonte (1967) 253 Cal.App.2d 980; Gaines v. Municipal Court (1980) 101 Cal.App.3d 556;

Cannot be for convenience of witness. Cunningham v. Municipal Court (1976) 62 Cal.App.3d 153.

Continuance because of attorney

People's right to a speedy trial.

Thus, “the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner *630 he deems best, using any legitimate means within his resources—and ... that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 208.)

Maniscalo v. Superior Court (1991) 234 Cal.App.3d 846, 851-852; People v. Lucev (1986) 188 Cal.App.3d 551, 556; People v. McKenzie (1983) 34 Cal.3d 616, 630

Prosecutors are fungible. (Batey v. Superior Court (1977) 71 Cal.App.3d 952.)

(People v. McKimson (1982) 135 Cal.App.3d 873, 881.)

Defense cousnel unprepared to go forward.

Little v. Superior Court (1980) 110 Cal.App.3d 667

People v. Locklar (1978) 84 Cal.App.3d 224.

People v. McKenzie (1983) 34 Cal.3d 616