Gavin v. Municipal Court of San Diego Judicial Dist.

• Decision Date: 19 September 1960
• Citation: 7 Cal.Rptr. 732,184 Cal.App.2d 712
• Parties: William F. GAVIN, Plaintiff and Appellant, v. MUNICIPAL COURT OF SAN DIEGO JUDICIAL DISTRICT, Defendant and Respondent. Civ. 6448.
• Court: California Court of Appeals Court of Appeals

Page 732

7 Cal.Rptr. 732

184 Cal.App.2d 712

William F. GAVIN, Plaintiff and Appellant, v. MUNICIPAL COURT OF SAN DIEGO JUDICIAL DISTRICT, Defendant and Respondent.

Civ. 6448.

District Court of Appeal, Fourth District, California.

Sept. 19, 1960.

Hearing Denied Nov. 16, 1960.

William F. Gavin, appellant in pro. per.

Henry A. Dietz, County Counsel, and Joseph Kase, Jr., Deputy County Counsel, San Diego, for respondent.

COUGHLIN, Justice.

This is an appeal from an order dismissing and denying a petition for a peremptory writ of prohibition and discharging and alternative writ theretofore issued, entered after sustaining a general demurrer to the second amended petition, without leave to amend.

The petitioner, appellant herein, was arrested in the City of San Diego on November 25, 1959 for violation of Vehicle Code, § 22107, i. e., moving left or right upon a roadway when unsafe. A notice to appear, usually referred to as a 'Citation', was issued by the arresting officer; required petitioner's presence before the respondent court on December 17, 1959; was signed by him, indicating his promise to appear; was filed; and otherwise complied with the law in the premises. Veh.Code, §§ 40304, 40500-40502. Petitioner appeared before the court on December 17, 1959, as scheduled, and denied that he had violated the Vehicle Code sections in question. On the next day a verified complaint was filed charging him with the traffic violation for which he was arrested. The petition contains no allegation that he waived the filing of such a complaint. The procedure thus followed was that prescribed by section 40513 of the Vehicle Code. To the charge contained in this complaint petitioner entered a plea of 'not guilty'; stated that he would not waive the statutory time, i. e., that prescribed by Penal Code, § 1382, subd. 3; and requested that his trial be set within 30 days following his arrest. Nevertheless, and over his objection, the trial was set for January 11, 1960.

On January 8, 1960, pursuant to previous notice, petitioner moved the court to dismiss the proceedings upon the ground that he had not been tried within 30 days after his arrest as, he contends, is required by the aforesaid Penal Code section. His motion was denied. Thereupon he petitioned the trial court for a writ of prohibition to stay further proceedings in the respondent court. An alternative writ was granted; a demurrer to the petition was filed, heard and sustained; and eventually a general demurrer to a second amended petition was sustained without leave to amend. The judgment appealed from followed.

Pertinent parts of Penal Code, § 1382, subd. 3 provide that,

'The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: * * * 3. * * * if the defendant in a misdemeanor case in an inferior court, is not brought to trial within 30 days after he is arrested and brought within the jurisdiction of the court * * *' (Emphasis added.)

Petitioner was arrested on November 25, 1959, and contends that he was brought within the jurisdiction of the respondent court at the same time. A similar contention was considered and rejected in the case of Rupley v. Johnson, 120 Cal.App.2d 548, 261 P.2d 318, which held that a defendant cited for and charged with violating a Vehicle Code section, who pleads not guilty thereto and does not waive the filing of a complaint, is not brought within the jurisdiction of the court, as contemplated by Penal Code, § 1382, subd. 3, until a verified complaint charging him with the offense in question has been filed. The court in the cited case based its decision upon the provision of the Vehicle Code which then were contained in section...