Cody v. Justice Court of Vacaville Judicial Dist.

• Decision Date: 22 November 1965
• Citation: 47 Cal.Rptr. 716,238 Cal.App.2d 275
• Parties: Lloyd CODY, Plaintiff and Appellant, v. JUSTICE COURT OF the VACAVILLE JUDICIAL DISTRICT, Defendant and Respondent, PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 22620.
• Court: California Court of Appeals Court of Appeals

Page 716

47 Cal.Rptr. 716

238 Cal.App.2d 275

Lloyd CODY, Plaintiff and Appellant, v. JUSTICE COURT OF the VACAVILLE JUDICIAL DISTRICT, Defendant and Respondent PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 22620.

District Court of Appeal, First District, Division 1, California.

Nov. 22, 1965.

Hearing Denied Jan. 19, 1966.

Winters, Winters & Golla, by Robert K. Winters, Benicia, for appellant.

Thomas C. Lynch, Atty. Gen., of State of California, Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

This is an appeal from a judgment ¹ denying a petition for a writ of mandate to compel respondent justice court to enter a dismissal of an action pending therein against appellant.

On April 14, 1964, a criminal complaint was filed in the Justice Court of the Benicia Judicial District, County of Solano, charging appellant with a violation of Penal Code section 242 (battery), a misdemeanor. On that date appellant was arrested and released on his own recognizance. On April 16, 1964 appellant's counsel appeared and the cause was continued until April 28, 1964. On April 28, appellant's counsel appeared and entered a plea of not guilty on behalf of appellant, whereupon the court set the cause for trial on June 25, 1964, without objection by said counsel. On June 22, 1964, pursuant to a stipulation in open court between counsel for the parties, the trial was continued to October 13. On October 13, pursuant to a similar stipulation, the trial was continued to November 17, 1964. Defendant did not appear personally on any of the foregoing occasions.

On November 5, 1964, appellant filed a motion to dismiss and for a change of venue. The court denied the motion to dismiss but granted appellant's motion for a change of venue to the Justice Court of the vacaville Judicial District. At the hearing of the above motion, appellant's counsel informed both the court and the district attorney that he would not request or consent to any further continuance. The judge then told both counsel that on his own motion he would take the matter off calendar for November 17, 1964. The district attorney specifically requested the court to continue the cause to a date certain for resetting for trial but the court declined to do so because it was not aware of the trial calendar of the Vacaville Justice Court. An attempt to reach the latter court by telephone was unsuccessful. As a result the case was neither set for trial nor continued to a specific date to be set for trial.

On December 8, 1964, a letter was sent by the Vacaville Justice Court to the district attorney and a copy thereof to appellant's counsel, notifying the parties that the cause had been set for trial for January 14, 1965. This notice was received by appellant's counsel on December 9 or December 10, 1964. Nothing was done by appellant until December 22, 1964, when he filed in respondent court a motion to dismiss the action on the ground that appellant had not been brought to trial within the time prescribed by Penal Code section 1382, subdivision 3. On December 29, the motion was argued and denied. On December 31, 1964 appellant filed in the court below his petition for writ of mandate which was argued and submitted on the petition and supporting affidavit (see fn. 1, ante) and thereupon denied. This appeal followed.

The right of a defendant in a criminal case to a speedy trial is guaranteed by the Constitution of California (art. I, § 13) and declared and implemented by statute (Pen.Code §§ 686, 1382). ² The constitutional provision establishes a fundamental right and is self-executing (People v. Godlewski (1943) 22 Cal.2d 677, 682, 140 P.2d 381, 384); the provisions of section 1382 'are supplementary to and a construction of the Constitution * * *.' (People v. Godlewski, supra; People v. Wilson (1963) 60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452.) However it is settled that the constitutional right to a speedy trial and the statutory requirements implementing it may be waived. (People v. Tahtinen (1958) 50 Cal.2d 127, 131, 323 P.2d 442; People v. Wolson, supra, 60 Cal.2d at p. 146, 32 Cal.Rptr. 44, 383 P.2d 452; People v. Weiss (1958) 50 Cal.2d 535, 558-559, 327 P.2d 527.)

Penal Code section 1382, as in effect at the time of appellant's motion, provided in relevant part as follows: 'The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: * * * 3. Regardless of when the complaint is filed, when a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he is arrested * * *; except that an action shall not be dismissed under this subdivision (1) if it is set for trial on a date beyond the prescribed period at the request of the defendant or with his consent, express or implied, and the defendant is brought to trial on the date so set for trial or within 10 days thereafter * * *.'

Appellant contends (1) that respondent court should have dismissed the action under Penal Code section 1382 because he was not brought to trial within 10 days after November 17, 1964, the last trial date to which he consented; and (2) that in any event the court should have dismissed the action under said section because he had not been brought to trial within 30 days after November 13, 1964, when his motion for change of venue was granted by the Benicia Justice Court.

Before we consider these points, we must dispose of respondent's counter argument that section 1382 is not applicable at all to the facts of the instant case and that appellant's right to a speedy trial must be examined only in the light of the pertinent constitutional provision (Cal.Const., art. I, § 13) which contains no specific time period. Appellant has made no showing, says respondent, of a denial of such constitutionally guaranteed right.

The Attorney General's argument as to the nonapplicability of the above statute is grounded on the premise that the 'time provisions of Penal Code section 1382 do not apply to a given case unless specifically covered by the statute.' In support of this proposition, he cites, without any discussion whatsoever, People ex rel. Department of Public Works v. Murata (1960) 55 Cal.2d 1, 9 Cal.Rptr. 601, 357 P.2d 833; People v. Marshall (1930) 209 Cal. 540, 289 P. 629; In re Alpine (1928) 203 Cal. 731, 265 P. 947, 58 A.L.R. 1500; Ex parte Newell (1922) 188 Cal. 508, 206 P. 61; In re Rosenberg (1937) 23 Cal.App.2d 265, 72 P.2d 559. The point of the argument seems to be that since section 1382 prescribes no time within which a defendant must be brought to trial in instances where a change of venue has been ordered, a defendant is automatically foreclosed from relying upon the statute in such situations. However, an examination of respondent's cited cases discloses that none of them deal with a change of venue or declare the broad proposition sought to be sustained. Indeed the cited cases, unlike the case before us, do not involve the problem of bringing a defendant to trial in the first instance on a given indictment or information but deal with the nonapplicability of section 1382 to retrials after reversal on appeal under former law (In re Alpine, supra; People v. Marshall, supra) or to cases where a new information was filed (Ex parte Newell, supra), or a new indictment found (In re Rosenberg, supra), the statutory time being thereafter computed from the date of the new rather than the original accusatory pleading. People ex rel. Department of Public Works v. Murata, supra, does not seem to be in point at all and we have not been enlightened by respondent as to its pertinency herein.

However, the Attorney General's reliance upon Alpine and Marshall, supra, cases which dealt with section 1382 prior to its revision in recent years, persuades us to examine them more closely to ascertain whether they furnish any valid reason for concluding that section 1382 must specifically cover a procedural problem to be operative at all. We begin by noting that section 1382 was amended in 1951 (Stats.1951, ch. 1674, § 140, p. 3856) to provide for dismissal in superior court actions where, in instances of a retrial following reversal on appeal, a defendant is not brought to trial 'within 60 days after the filing of the remittitur in the trial court' and to provide for dismissal in inferior court actions where in a similar situation a defendant is not brought to trial 'within 30 days after the remittitur is filed in the trial court or within 30 days after the judgment on appeal becomes final, * * *' By a 1959 amendment (Stats.1959, ch. 1693, § 3, p. 4093) section 1382 was further amended so as to make such 60-day and 30-day time periods applicable in instances of mistrial and orders granting new trial from which no appeal is taken. Thus amended, subdivisions 2 and 3 at the time of appellant's motion read in pertinent part as set forth below in the footnote. ³

It is to be borne in mind, therefore, that Alpine and Marshall, on which the Attorney General relies, deal with section 1382 not as it presently reads but as it read before the foregoing revisions. Prior to the 1951, amendment it was held that the time periods prescribed in section 1382 did not apply to a retrial of an action after reversal on appeal. (People v. Giesea (1883) 63 Cal. 345, 346; People v. Lundin (1898) 120 Cal. 308, 311, 52 P. 807; In re Alpine, supra, 203 Cal. 731, 734-739, 265 P. 947, 58 A.L.R. 1500; People v. Marshall, supra, 209 Cal. 540, 546, 289 P. 629.) On the other hand, even prior to the above-mentioned 1959 amendment, it was held that where the first trial resulted in a mistrial, another statutory period as prescribed by section 1382 started from the determination of the mistrial. (In re Begerow (1901) 133 Cal. 349, 355-356, 65 P. 828, 56 L.R.A. 513; People v. Chadwick (1904) 143 Cal. 116, 120, 76 P. 884; People v....