Ex parte Lopez

Decision Date17 June 1952
Docket NumberCr. 5304
PartiesEx parte LOPEZ.
CourtCalifornia Supreme Court

Arthur D. Klang and Albert E. Polonsky, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Thomas C. Lynch, Dist. Atty., Cecil Poole, Asst. Dist. Atty., and Raymond D. Williamson, San Francisco, for respondents.

SHENK, Justice.

This is a petition for the writ of habeas corpus or other appropriate writ to obtain dismissal of a pending prosecution for lack of a speedy trial pursuant to section 1382 of the Penal Code.

The petitioner, referred to herein as the defendant, was informed against on November 9, 1951, on a charge of grand theft. He was arraigned on November 16th and pleaded not guilty. At that time the case was continued to November 26th to be set. On that date the trial was set for December 20, 1951. When called for trial, the case was continued with the consent of the defendant to December 27th. On December 27th, again with his consent, the trial was continued to January 17, 1952. On that date the defendant announced that he was ready for trial. He objected to a further continuance requested by the District Attorney and moved for dismissal pursuant to section 1382. His motion was denied and the trial was continued to January 24th. On January 24th he again announced that he was ready, objected to a further continuance, and renewed his motion to dismiss. The motion was denied and the trial date reset for February 4th. When he appeared for trial he objected to a further continuance, and renewed his motion for dismissal. His motion was denied and over his objection the trial was continued to and commenced on February 7, 1952. On that day this court issued an order to show cause why the prosecution should not be dismissed. Upon the service of this order the trial court continued the further trial pending the determination of this proceeding. No writ has been issued.

The return to the order to show cause sets forth the reasons claimed to be good cause for the postponements. It is shown that each time when continuances were granted commencing on January 17, 1952, the last trial date to which the defendant had consented, the court has engaged in the trial of other cases. The defendant does not question that such was the condition of the court calendar, but contends that his trial should have preceded the trials in four cases where the information was filed after the date of filing in his case; that all of them were tried before his trial commenced on February 7th; and that in one the defendant was out on bail while this defendant was not on bail. It does not appear that the trial court without sufficient reason set the defendant's trial for a date later than the trial in any of such cases. Any contention in this respect is met by the answer to the question whether good cause existed for delay in the defendant's trial.

As applicable here subdivision 2 of section 1382 of the Penal Code provides that the court, unless good cause to the contrary is shown, must order the prosecution dismissed if a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within 60 days after the filing of the information.

The defendant's consent to the postponement of his trial is equvalent to a postponement on his application and is sufficient cause for the delay. Ray v. Superior Court, 208 Cal. 357, 281 P. 391; People v. Santos, 134 Cal.App. 736, 744, 26 P.2d 522.

As the record shows, the agreed continuances brought the postponement by the defendant's consent to January 17th, a date beyond the 60 day period from the filing of the information. On January 17th, therefore, the defendant had no good reason for insisting upon a dismissal. But his consent to delay beyond the 60 day period does not amount to a waiver of his constitutional right to a speedy trial nor of the requirement that further delay must be justified on grounds of reasonableness and good cause. People v. Duffy, 110 Cal.App. 631, 294 P. 496; People v. Santos, supra, 134 Cal.App. 736, 744, 26 P.2d 522.

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  • People v. Johnson
    • United States
    • California Supreme Court
    • February 29, 1980
    ...within the discretion of the trial court. (People v. McFarland (1962) 209 Cal.App.2d 772, 776, 26 Cal.Rptr. 596; see In re Lopez (1952) 39 Cal.2d 118, 120, 245 P.2d 1; People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1007, 122 Cal.Rptr. 267.) In reviewing trial courts' exercise o......
  • People v. Wilson
    • United States
    • California Supreme Court
    • July 9, 1963
    ...731, 739(6)-744(10), 265 P. 947, 58 A.L.R. 1500), we have entertained on its merits such an application for habeas corpus (In re Lopez (1952) 39 Cal.2d 118, 245 P.2d 1) and relief through that writ has been granted in at least one recent appellate decision (In re Vacca (1954) 125 Cal.App.2d......
  • Richerson v. State
    • United States
    • Idaho Supreme Court
    • April 21, 1967
    ...on the circumstances of each case bearing on * * * good cause' for the delay in bringing a defendant to trial. (In re Lopez (1952) 39 Cal.2d 118, 120, 245 P.2d 1, 2; see also Pollard v. United States (1957) 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393.) When there has been an extended del......
  • Hankla v. Municipal Court
    • United States
    • California Court of Appeals Court of Appeals
    • June 26, 1972
    ...60 Cal.2d 139, 145, 32 Cal.Rptr. 44, 383 P.2d 452; People v. Tahtinen (1958) 50 Cal.2d 127, 131--132, 323 P.2d 442; and In re Lopez (1952) 39 Cal.2d 118, 120, 245 P.2d 1.) In this case any earlier waiver terminated with the declaration of a mistrial, and the 30-day statutory period for retr......
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    • March 30, 2022
    ...Lewallen (1979) 23 Cal.3d 274, §§3:56.4, 9:13.1 In re Littlefield (1993) 5 Cal.4th 122, §§5:42, 5:44.5, 5:52.2, 5:53.2 In re Lopez (1952) 39 Cal.2d 118, §6:21.5.1 In re Lopez-Meza , 22 I. & N. Dec. 1188 (BIA December 21, 1999), §10:111.4 In re Lorenzo L. (2008) 163 Cal.App.4th 1076, §§10:35......

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