Pickett v. Municipal Court

• Decision Date: 23 November 1970
• Citation: 12 Cal.App.3d 1158,91 Cal.Rptr. 315
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene PICKETT, Petitioner and Respondent, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Respondent. PEOPLE of the State of California, Real Party in Interest and Appellant. Civ. 35887.

Page 315

91 Cal.Rptr. 315

12 Cal.App.3d 1158

Eugene PICKETT, Petitioner and Respondent, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Respondent.

PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 35887.

Court of Appeal, Second District, Division 4, California.

Nov. 23, 1970.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Robert Lederman, Deputy Dist. Atty., for real party in interest and appellant.

Richard Wasserstrom and Kenneth Graham, Jr., Los Angeles, for petitioner and respondent.

FRAMPTON, ^** Associate Justice.

Respondent was arraigned on May 12, 1969, in the Municipal Court of the Pasadena Judicial District upon a complaint charging six misdemeanor violations. He entered a plea of not guilty as to all counts, and trial was set for June 4, 1969. On May 14, 1969, he was released on bail and has remained at liberty on bail since that time.

On May 27, 1969, on motion of the respondent, the cause was continued for trial until July 9, 1969. On June 11, 1969, respondent noticed a motion to be heard June 16, 1969, for change of venue. This motion was denied on June 19, 1969, after hearing.

On June 16, 1969, at the time of the hearing on the motion for change of venue, the People, without notice, moved to continue the trial to August 20, 1969. This motion was opposed by respondent. The motion to continue was granted and the cause was continued for trial, over respondent's objections to August 20, 1969. No witnesses were called or affidavits filed in support of the motion to continue. The motion was granted apparently upon an oral statement made in open court by the deputy district attorney in charge of the prosecution of the case.

On August 4, 1969, respondent noticed a motion to dismiss the action pursuant to section 1382 of the Penal Code. This motion was heard on August 7, 1969, and was denied on August 13, 1969.

The minutes of August 13, 1969, reflect the following as good cause for the court's denial of the motion to dismiss: 'The Court finds that the prosecution represented to the Court that many of the People's witnesses are comprised of school personnel, some of whom would be out of the State on July 9 or would be engaged in teaching summer school; that August 20 was the earliest date which the matter could be set to assure the attendance of these witnesses and which would permit the matter to be tried prior to the commencement of the Fall term; and that defendant did not then and has not since shown any prejudice to his case by the granting of the continuance.

'Therefore, the matter remains set for Jury Trial on August 20, 1969.'

On August 18, 1969, respondent moved to continue the trial date to October 1, 1969, for the purpose of seeking a review of the order denying the motion to dismiss. On September 8, 1969, respondent petitioned the superior court for writ of prohibition to restrain the trial court from proceeding with the trial of the criminal action. The alternative writ was issued and, upon hearing, judgment was rendered granting a peremptory writ of prohibition restraining the trial court from proceeding further in the action. Real party in interest appeals from the judgment.

The sole issue on appeal is whether there was a sufficient showing of good cause to support the order continuing the trial date, over respondent's objection, beyond the time limit, in misdemeanor cases, as provided by section 1382 of the Penal Code. ¹

As heretofore pointed out, the People, without notice or affidavit in support of the motion, moved on June 16, 1969, over respondent's objection, to postpone the trial until August 20, 1969, on the grounds orally stated to the court, and the court granted the motion.

The trial date had been postponed from June 4, 1969, to July 9, 1969, on motion of respondent. He was entitled, therefore, to go to trial on July 9, 1969, or on a date not later than July 19, 1969. The trial date was set, over respondent's objection, 32 days beyond the statutory limit. Respondent protected his right to a speedy trial by objecting to the continuance, and by his motion to dismiss the action prior to trial. (People v. Wilson, 60 Cal.2d 139, 147, 32 Cal.Rptr. 44, 383 P.2d 452.)

In cases of misdemeanor, the denial of a speedy trial is deemed to be prejudicial in view of the provision in Penal Code section 1387 that an order of dismissal under section 1382 is a bar to any other prosecution for the same offense if it is a misdemeanor. (In re Smiley, 66 Cal.2d 606, 632, 58 Cal.Rptr. 579, 427 P.2d 179; Harris v. Municipal Court, 209 Cal. 55, 64, 285 P. 699; Kehlor v. Municipal Court, 116 Cal.App.2d 845, 849, 254 P.2d 897.) The trial court's finding on ruling on the motion to dismiss 'that defendant did not then and has not since shown any prejudice to his case by the granting of the continuance,' erroneously assumes that the burden rested upon respondent to establish prejudice beyond the fact that the prosecution has been unreasonably delayed. (Kehlor v. Municipal Court, Supra, p. 849, 254 P.2d 897.)

The People urge that good cause for the continuance was shown. We do not agree.

On June 16, 1969, when the motion to continue was made, there is no showing that any of the state's witnesses were beyond the jurisdiction of the court. There is no showing that the district attorney had made any effort to locate and subpoena any of his...