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Petitioner argues that when Deputy Public Defender Millard appeared on November 12 and announced that he was "ready" for trial, the 10-day grace period began. He asserts that while there may have been a one day "tolling" of the grace period during the interval between the 12th and the 18th (while the deputy public defender assigned to his case was in another trial), the 10 days having commenced on November 12 nevertheless expired prior to November 25. There is no authority, either in the language of section 1382, subdivision 2, or in case law to support petitioner's "tolling" theory.
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Townsend Design makes a wide range of exceptional ligament/OA braces and supports for rehabilitation from orthopedic injuries. You'll find a variety of braces designed for upper extremity injuries and Townsend knee brace products for treating ligament sprains, reconstructions, and arthritic knee conditions. 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. We consider the question -- did the consent of petitioner's counsel to the various extensions of time bind petitioner? If not, the 60-day period contemplated by section 1382 having elapsed, the calculation of the 10-day grace period becomes moot and the information must be dismissed.
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Subsequent sections suggest the primary factor to be considered in evaluating the ends of justice is the unusual or complex nature of the case. The majority characterize this case as one involving a conflict between a defendant's right to a speedy trial and his right to effective assistance of counsel. With all due respect, I believe that a careful examination of the realities of this case reveals no such conflict. Rather, the fundamental question at issue is whether a defendant's right to a speedy trial can in [15 Cal.3d 787] practice be denied to an indigent defendant by a county's appointment of a counsel who is too heavily burdened and overworked to bring the defendant's case to an expeditious trial.
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It was thereupon agreed between court and counsel that the matter be "trailed" or continued from day to day until such time as Millard became available. This "trailing" continued until November 12, on which day Millard appeared, announced he was "ready" for trial, but also explained to the court that he was "trailing" in another case, People v. Bond. Because the Bond matter was deemed by defense counsel to be the more pressing of the two, Millard once again requested that petitioner's case be trailed from day to day, pending his completion of the Bond trial. Millard stated to the court that he did not expect Bond to take more than an hour or two once trial began.
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Furthermore, we need not concern ourselves with the validity of this contention since the assumption upon which it depends is the result of a misinterpretation of section 1382, subdivision 2, as we demonstrate below. On August 16 an information was filed in respondent court, charging petitioner with a violation of Health and Safety Code section (sale of a controlled substance), and further alleging a prior conviction under [15 Cal.3d 778] former Health and Safety Code section (possession of marijuana). A public defender was appointed to represent petitioner, and the matter was continued to August 29.
Fundamental constitutional rights are not susceptible of waiver except by the defendant personally. 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.
While it is true that counsel indicated at the proceedings of November 7, 12 and 15, that he believed the 10-day period was expiring, such a statement was based on his erroneous interpretation of the statute, and did not constitute an objection to further continuances. If an affluent defendant chooses to employ a counsel who is involved in many other cases, then the courts, quite appropriately, can require the defendant to wait until his selected counsel is ready for trial; if the delay is unacceptable to the defendant, he can always engage another, less burdened attorney. If the public defender who is appointed to represent him is already handling so many cases that the defendant's case must "trail" beyond the 60-day period, the indigent necessarily loses his statutory right to a speedy trial. He must take his turn in the public defender's long line of undertakings and await a trial date after the expiration of the 60-day period contemplated by section 1382 when the beleaguered public defender has finally disposed of all the preceding cases.
On November 15 he filed, in propria persona, a petition for writ of habeas corpus alleging a violation of his right to a speedy trial. Here, defendant's defense was not so "complex and myriad" that counsel needed additional time to prepare effectively for trial. 2 If the delay had resulted from such circumstances, then there would be some justification for the majority's characterization of the case as a conflict between defendant's right to a speedy trial and his right to effective counsel. Here, however, the delay ensued simply because the defense counsel was overburdened with other cases which took precedence over that of the defendant. On November 7 Millard was engaged in another trial and unable to make the scheduled appearance in petitioner's case. Deputy Public Defender Blum appeared on petitioner's behalf and informed the court of the reasons for Millard's absence.
