Hankla v. Municipal Court

• Decision Date: 26 June 1972
• Citation: 26 Cal.App.3d 342,102 Cal.Rptr. 896
• Parties: Randolph A. HANKLA, Petitioner, v. The MUNICIPAL COURT OF the State of California, CENTRAL JUDICIAL DISTRICT, COUNTY OF SONOMA, Respondents, The PEOPLE of the State of California, Real Party in Interest. Civ. 31046.
• Court: California Court of Appeals Court of Appeals

Page 896

102 Cal.Rptr. 896

26 Cal.App.3d 342

Randolph A. HANKLA, Petitioner, v. The MUNICIPAL COURT OF the State of California, CENTRAL JUDICIAL DISTRICT, COUNTY OF SONOMA, Respondents The PEOPLE of the State of California, Real Party in Interest.

Civ. 31046.

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

June 26, 1972.

Robert Y. Bell, L. Stephen Turer, James M. Barrett, Santa Rosa, for petitioner.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, San Francisco, Doris H. Maier, Sacramento, Joyce F. Nedde, Herbert F. Wilkinson, San Francisco, for respondent and real party in interest.

SIMS, Associate Justice.

Petitioner, the defendant in criminal proceedings pending in the Municipal Court for the Central Judicial District of the County of Sonoma, filed a petition for writ of prohibition and/or mandamus in which he sought an alternative writ of prohibition restraining that court from taking any further proceedings in the pending action until further order of this court, a peremptory writ of prohibition prohibiting any such proceedings, and alternative and peremptory writ of mandamus directed to requiring that court to dismiss the criminal action against petitioner, or, in the alternative to grant petitioner a change of venue. He contends that he has been denied a speedy trial because the municipal court failed to set his retrial within 30 days after a mistrial was declared as required by subdivision (3) of section 1382 of the Penal Code, ¹ that the municipal court erred in failing to dismiss the pending charge because further prosecution of that charge subjects him to multiple prosecution in violation of the provisions of section 654 of the Penal Code, ² and that the municipal court erred in denying his motion for change of venue because the publicity attendant to his arrest and prosecution for the pending charge and other related charges renders it unlikely that he can secure a fair trial within the jurisdiction where the action is pending. This court issued an alternative writ of prohibition, which stayed further proceedings, and the matter has been submitted on the petition, the People's opposition thereto (see Cal.Rules of Court, rule 56(b)), petitioner's supplemental memorandum, and the People's return to the alternative writ.

The principal issue is whether an amended complaint, which was filed after the petitioner's first trial ended in a mistrial, served to initiate a new 45-day period in which the defendant could be brought to trial. (See Pen.Code, § 1382, fn. 1 above.) It is concluded that under the circumstances of this case, the amendments actually made did not serve to do so, that the defendant was denied a speedy trial, and that a peremptory writ of mandate must issue ordering th emunicipal court to dismiss the pending charge.

Although the foregoing conclusion renders petitioner's other contentions moot, since the facts and issues relating to his alleged multiple prosecution and claim of inability to get a fair trial bear in part on the principal issue, those facts and contentions are also reviewed.

On March 20, 1971 petitioner was arrested for driving a vehicle upon a public highway while under the influence of intoxicating liquor in violation of subdivision (a) of section 23102 of the Vehicle Code. A complaint charging him with that offense was filed in respondent court on March 22, 1971. Apparently as the result of an investigation following his arrest, a second complaint was filed on April 1, 1971. This complaint charged in one count that petitioner on January 6, 1971 lewdly exposed his person and private parts in a public place where there was another person to be offended and annoyed thereby in violation of section 314 of the Penal Code, and in a second count that on March 20, 1971 (the day of his arrest on the Vehicle Code charge) he violated section 272 of the Penal Code in that he caused a named individual, of the age of 19 years, to place his hand on the penis of the petitioner which act tended to encourge that individual to come within the provisions of section 601 of the Welfare and Institutions Code, to wit: to become and remain a minor person who is leading or in danger of leading an idle, dissolute and immoral life. ³

According to the newspaper clippings tendered in support of petitioner's claim for a change of venue, on May 27, 1971 petitioner's first motion for change of venue on the sex charges was denied. He did, however obtain an order severing the two charges in the second complaint. Trial on the first count was set for June 29, 1971, ⁴ and trial on the second count was continued to September 14, 1971.

On June 9, 1971 petitioner moved the department of the respondent court in which the second count, violation of Penal Code section 272, was pending for consolidation of that trial with the trial on the Vehicle Code violation, which was pending in the second and sole other department of the court. That motion was resisted by the district attorney and was argued but not decided on June 11, 1971. That afternoon petitioner, who had a blood alcohol test of .20 percent at the time of his arrest, appeared in the second department and entered a plea of guilty to the Vehicle Code violation in return for a recommendation, followed by the court, that one-half of the usual fine be suspended. In the course of these proceedings, the district attorney sought a waiver of any rights the defendant might have to raise the question of multiple prosecution under the remaining charge of violation of Penal Code section 272, and the court refused to require such a waiver because it had not been bargained for. The judge indicated that there had been a prior motion concerning consolidation of the trials in his department and that he was of the opinion that compulsory joinder, to prevent multiple prosecution, did not apply.

On August 2, 1971 petitioner moved for dismissal of the pending Penal Code section 272 charge on the grounds that further prosecution after disposition of the Vehicle Code charge would constitute prohibited multiple prosecution. (See Kellett v. Superior Court (1966) 63 Cal.2d 822, 825--827, 48 Cal.Rptr. 366, 409 P.2d 206; and Pen.Code, § 654, fn. 2 above; and § 954.) On September 2, 1971 that motion was denied.

According to a clipping submitted by petitioner, on September 10, 1971 the trial date was continued to October 13, 1971 on motion of the petitioner when his attorney represented that he was undergoing surgery and sought time to interpose a motion for change of venue and to seek review of the order denying petitioner's motion to dismiss.

On September 20, 1971 petitioner interposed a motion for change of venue which was denied.

Thereafter, petitioner filed a petition for a writ of prohibition and/or mandamus with the Superior Court for the County of Sonoma seeking review of the denial of his motion to dismiss and his motion for change of venue and a stay of the trial date. Following hearing on October 7 and 8, 1971 the superior court denied petitioner any relief by order made on the latter date. A petition for an extraordinary writ to review the multiple prosecution issue was denied by the Court of Appeal on October 12, 1971 (1 Civ. 30471, Div. Four), and a petition for hearing in the Supreme Court was dismissed as moot on November 4, 1971 because the trial of the case had already concluded.

The trial which commenced October 13, 1971 terminated on October 22, 1971 in a mistrial, when the jury, which stood 9 to 3 for acquittal, failed to arrive at a verdict. The judge after declaring a mistrial continued the matter to October 29, 1971 for further proceedings.

On October 29 the district attorney filed an amended complaint in three counts. Each count accuses the petitioner of violating section 272 of the Penal Code on March 20, 1971 by words, conduct and acts which 'tended to cause the said (identical named individual), a person under the age of 21 years, to become and remain a minor * who is leading, or is in danger of leading, an idle, dissolute, lewd and immoral life.' (* The word person is inserted after minor in the second and third counts.) The first count echoes the charge upon which petitioner was tried but the words 'did encourage by words and conduct one (named individual) to place his hand on the penis of the defendant' are substituted for 'did wilfully and unlawfully cause one (named individual) to place his hands on the penis of the defendant.' The second count alleges that petitioner, as defendant, 'did solicit one (named individual) to participate in an act of oral copulation of the defendant's penis'; and the third count charges that he 'did take down his pants and expose his person to (named individual).' At the request of petitioner's attorney the matter was continued to November 4, 1971 for plea and the filing of certain motions.

On November 4, 1971 petitioner filed a demurrer and objections to the amended complaint, a motion to strike and set aside the complaint, and a motion to dismiss. The court took these matters under submission for the purposes of legal research and continued the matter until November 15, 1971 for ruling on the motions and for plea.

On November 15 all of petitioner's motions were denied and he entered a plea of not guilty to each count. At his request the matter was continued to November 18 for setting.

Meanwhile the defendant had made a new motion for change of venue. On November 18 that motion was denied. When the court approached the matter of setting a trial date petitioner's attorney advised the court that the petitioner would refuse to waive time. Thereupon the court set the trial for December 21, 1971 and placed the matter on the calendar for confirmation on December 15, 1971. Petitioner's attorney then stated, 'Your Honor, at this time for the record we would object to that date set or any date set on this trial on the grounds previously raised in all motions at the first trial in all pretrial...