Arnold v. Superior Court

• Decision Date: 22 April 1971
• Citation: 94 Cal.Rptr. 589,16 Cal.App.3d 984
• Court: California Court of Appeals Court of Appeals
• Parties: Jerry Allen ARNOLD, Petitioner, v. SUPERIOR COURT, Respondent, The PEOPLE, Real Party in Interest. Civ. 37960.

Page 589

94 Cal.Rptr. 589

16 Cal.App.3d 984

Jerry Allen ARNOLD, Petitioner, v. SUPERIOR COURT, Respondent, The PEOPLE, Real Party in Interest.

Civ. 37960.

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

April 22, 1971.

Hearing Denied June 17, 1971.

Robert G. Eckhoff, Public Defender, and Lloyd R. Nocker, Deputy Public Defender, Santa Barbara, for petitioner.

David D. Minier, Dist Atty., County of Santa Barbara, and Zel Canter, Deputy Dist. Atty., for real party in interest.

No appearance for respondent court.

KINGSLEY, Associate Justice.

On January 18, 1968, petitioner was charged by complaint in municipal court with robbery and with assault with a deadly weapon, in violation of sections 211 and 245 of the Penal Code. A warrant for his arrest duly issued but was never served, although he was in the county jail and in courts in Santa Barbara County during a large part of the year 1968. On December 9, 1968, he was arrested on a charge of murder, in violation of section 187 of the Penal Code. Thereafter, he was arraigned in municipal court, on January 9, 1969, on the robbery-assault complaint. That case proceeded through preliminary hearing and setting for trial, until, on March 11, 1969, it was continued on motion of the People because defendant had, in the interim, been tried and convicted on the murder charge.

While petitioner was in state prison on the murder conviction, and while his appeal from that judgment was pending, he demanded, pursuant to section 1381 of the Penal Code, that he be brought to trial on the robbery-assault case. That demand was honored and a trial took place, resulting, on October 29, 1969, in a hung jury. On November 4, 1969, when the case was called for a resetting, the People moved to dismiss and counsel for defendant stated that defendant would not oppose the motion. The record of those proceedings reads as follows:

'Mr. Cappello (Deputy District Attorney): * * * In light of the fact that Mr. Arnold is serving a life sentence for first degree murder, the District Attorney's Office will move to dismiss the case on the ground that we feel that presently, as our case presently stands, we don't have enough witnesses to convict Mr. Arnold of the robbery charge.

'Mr. Merenbach (Defense Counsel): We will not oppose the dismissal.

'The Court: On motion of the District Attorney and in the interest of justice for the reasons stated, the charges in the information are dismissed.'

Thereafter, petitioner's conviction on the murder charge was reversed by the Court of Appeal; he was returned to the superior court and retried. The retrial resulted in an acquittal on November 6, 1970. On that same date, the People refiled the 1968 robbery-assault case. After sundry continuances, petitioner moved to dismiss the refiled case on the ground that he had been denied a speedy trial; that motion was denied and he now seeks a writ of prohibition in this court to prevent the retrial. We issued an order to show cause; the case has been briefed and argued; we deny the writ.

I

As the People point out, petitioner cannot now object, in this proceeding, to the delay in bringing the original robbery-assault case to trial, both because he did not object to the delay therein involved when that case was called in 1969 (People v. Wilson (1963) 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452), and because that case is no longer before any court. Nor can he object to the relatively brief delay between November 6, 1970, and the final disposition of his motion to dismiss on January 27, 1971. That delay was occasioned by the fact that petitioner had elected to test the validity of the new charge by a habeas corpus proceeding in the superior court. The proceeding was pending and undecided until December 14, 1970; its pendency clearly constituted a 'good cause' for the continuance of the criminal case.

II

The real issue is whether the People, having once voluntarily dismissed the robbery-assault case under the circumstances herein involved, were, by refiling those charges, guilty of such harassment of defendant as to constitute a violation of any constitutional right. In People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421, the Supreme Court held that 'pre-indictment' delay does not violate the constitutional right to a speedy trial unless the defendant can show actual prejudice by the delay; the petition here contains no facts from which such prejudice could be deduced. Unlike Jones v. Superior Court (1970) 3...