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People v. Frye7/30/1998
urt was making every effort to appoint counsel. On September 2, when Judd Iversen was appointed to represent defendant, Iversen informed the court that although anxious to proceed with the case, defendant was willing to waive time to allow counsel to prepare for trial. At a hearing held on October 24 to consider the appointment of co-counsel, defendant indicated to the court that if Richard Hawk were also appointed to represent him, defendant would be willing to waive time in the event Hawk was not yet available because of prior commitments. The trial court appointed Hawk to serve as co-counsel in the case.
With the appointments of Iversen and Hawk in place, defendant continued to waive time. On December 10, 1986, following a successful motion to set aside the information pursuant to section 995, defendant consented to continue the date of his rearraignment until December 16. On December 18, with the concurrence of defense counsel, defendant waived his right to have his preliminary hearing held within the statutory period in order that his attorneys would have sufficient time to prepare. Following several discovery motions and other preliminary matters, defendant's second preliminary hearing commenced on February 18, 1987.
Defendant does not contest what is disclosed by the record, that he repeatedly and voluntarily waived his statutory rights to a speedy trial and prompt preliminary examination as set forth in sections 1381 and 686, respectively. (Cf. People v. Wilson (1963) 60 Cal.2d 139, 146 [constitutional right to speedy trial and its statutory requirements may be waived].) Defendant does complain, however, that he did so solely in order to obtain the effective assistance of counsel which he had been denied due to the trial court's appointment of Larry Dixon to represent him. Defendant claims that being forced to choose between his right to effective assistance of counsel and his right to a speedy preliminary hearing and trial violated his right to due process.
Decisions of this court and the Courts of Appeal have expressly recognized the tension between two rights guaranteed to every criminal defendant, the right to a speedy trial conferred by both the federal and state Constitutions and implemented through the time requirements in statutory provisions such as sections 686, 1381, and 1382, on the one hand, and the right to the effective assistance of counsel guaranteed by the Sixth Amendment, on the other hand. (People v. Johnson (1980) 26 Cal.3d 557, 566-569 (Johnson); Townsend v. Superior Court (1975) 15 Cal.3d 774, 782 (Townsend); People v. Noriega (1997) 59 Cal.App.4th 311, 320, fn. 4; see also People v. Abdel-Malak (1986) 186 Cal.App.3d 359, 370 (dis. opn. of Poche, J.).) In these cases, the tension arose when the defendant's desire to invoke the right to speedy trial by refusing to waive time came into conflict with defense counsel's request for a continuance. In resolving claims based on this conflict, the decisions have reached different Conclusions depending on the circumstances of the case. (Compare Johnson, supra, 26 Cal.3d at p. 568 [counsel who sought continuance due to calendar conflict may not waive unconsenting client's right to speedy trial under section 1382] with Townsend, supra, 15 Cal.3d at pp. 783-784 [counsel may give consent to waive time under section 1382 notwithstanding client's personal refusal to waive time].) Implicit in these decisions, however, is the notion that the inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel is not, in itself, an impermissible infringement on the rights of the accused, including the right to a fair trial.
Here, the record is devoid of evidence that def
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