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

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

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. 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.)

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

10-day trailing period

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)