Townsend

No appearance for Real Party in Interest.

OPINION

RICHARDSON, J.

In this case we are called upon to interpret and apply the provisions of California Penal Code section 1382 which require that a criminal defendant, in most felony cases, be brought to trial within 60 days after the filing of an accusatory pleading. In particular, we consider the effect of that statute in relation to the traditional power of trial counsel to control the proceedings.

Petitioner, defendant in a criminal action currently pending in Los Angeles County Superior Court, seeks an extraordinary writ requiring respondent court to set aside its order denying, and directing the grant of, his motion to dismiss. Petitioner alleges violation of his constitutional right to a speedy trial as that right is implemented by Penal Code section 1382, subdivision 2. This section provides:

"The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information ...; except that an action shall not be dismissed under this…

I dissent.

I agree with Justice Tobriner’s dissent in general and reach the same conclusion: that defendant has been denied his right to a speedy trial. Implicit in the majority opinion is the concept that convenience of the court, condition of the calendar and workload of counsel all take precedence over the constitutional and statutory requirements of a speedy trial. The result is a gross inversion of priorities.

While making common cause with my dissenting colleague’s conclusion, I do not concede that counsel has the authority incident to the power to control trial tactics, to waive the statutory speedy trial provisions, particularly when the waiver by counsel is made over the express objections of defendant.

In Linsk v. Linsk (1969) 70 Cal.2d 272 [ 74 Cal.Rptr. 544 , 449 P.2d 760 ], this court in a unanimous opinion discussed in depth the authority of *785 counsel. While Linsk was a civil case, it dealt with an unauthorized stipulation by counsel and thus is apposite to the instant problem. Construing the statutory declaration that an attorney may bind his client “in any of the steps of an action or proceeding” (Code Civ. Proc., § 283), we held that counsel is authorized by…

I dissent.

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 *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.

In the instant situation, defendant faced a charge of possession of narcotics. Because of his indigence the court appointed the public defender to represent him. Defendant remained incarcerated following arraignment. He continuously claimed his right to be tried within 60 days and vociferously refused to consent to any continuances. Nevertheless, his counsel, the public defender, requested a number of such continuances; these requests for more time, entered over defendant’s objections, did not emanate from the complexity of defendant’s case or from misconduct of defendant but from the public defender’s own heavy case…

In this case we are called upon to interpret and apply the provisions of California Penal Code section 1382 which require that a criminal defendant, in most felony cases, be brought to trial within 60 days after the filing of an accusatoiy pleading. In particular, we consider the effect of that statute in relation to the traditional power of trial counsel to control the proceedings.

Petitioner, defendant in a criminal action currently pending in Los Angeles County Superior Court, seeks an extraordinary writ requiring respondent court to set aside its order denying, and directing the grant of, his motion to dismiss. Petitioner alleges violation of his constitutional right to a speedy trial as that right is implemented by Penal Code section 1382, subdivision 2. This section provides:

“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . . ; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day…