Overby v. Municipal Court

• Decision Date: 08 July 1981
• Docket Number: LIVERMORE-PLEASANTON
• Citation: 121 Cal.App.3d 377,175 Cal.Rptr. 352
• Court: California Court of Appeals Court of Appeals
• Parties: James OVERBY, Plaintiff and Appellant, v. MUNICIPAL COURT FOR theJUDICIAL DISTRICT, Defendant. PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 50254.

Page 352

175 Cal.Rptr. 352

121 Cal.App.3d 377

James OVERBY, Plaintiff and Appellant, v. MUNICIPAL COURT FOR the LIVERMORE-PLEASANTON JUDICIAL DISTRICT, Defendant.

PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 50254.

Court of Appeal, First District, Division 3, California.

July 8, 1981.

Rehearing Denied Aug. 7, 1981.

Hearing Denied Oct. 2, 1981.

James R. Jenner, Public Defender, Jay B. Gaskill, Howard L. Bloom, Asst. Public Defenders, Oakland, for plaintiff and appellant.

George Deukmejian, Atty. Gen., of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, J. Patrick Collins, Deputy Attys. Gen., San Francisco, for real party in interest and respondent.

FEINBERG, Associate Justice.

James Overby appeals from a judgment of the Superior Court of Alameda County denying his petition for writ of mandate or prohibition. Appellant was arrested on April 17, 1979 on a misdemeanor warrant which had issued on October 18, 1978, charging him with a violation of Vehicle Code section 23102 (driving under the influence). He was arraigned on May 2, 1979. Thereafter, he moved to dismiss in the municipal court on the grounds that the six-month delay in serving the arrest warrant violated his right to a speedy trial.

At the hearing in the municipal court, Overby argued that the delay in serving the arrest warrant was in and of itself prejudicial (his motion alleged no actual prejudice). That presumed prejudice, he contended, was sufficient to shift the burden to the People to make a showing of justification for the delay. The People, on the other hand, argued that Overby had to show actual prejudice prior to any requirement on their part to produce evidence of justification. The record below is vague as to whether either party felt that any prejudice had to be balanced against justification or whether prejudice had to be overcome by a showing of good cause. Overby presented no evidence in the municipal court. His motion to dismiss was denied.

Overby filed a petition for writ of mandamus and for an alternative writ of prohibition in the superior court. On October 5, 1977, the alternative writ issued staying the municipal court proceedings and commanding the prosecution to show cause why proceedings should not be permanently restrained.

On October 29, 1979, an answer to the petition was filed, which answer argued that defendant had not alleged or shown prejudice from the six-month delay. On November 13, 1979, the matter was argued, the alternative writ was discharged, and the petition was denied. On November 16, 1979, judgment was entered accordingly, and on January 15, 1980, appellant's notice of appeal was filed.

On appeal, appellant contends that:

a. In a misdemeanor case, a defendant's state constitutional right to a speedy trial (Cal.Const., art. I, § 15) is violated by any delay greater than 60 days between the issuance of an arrest warrant and arrest, absent a showing by the prosecution of good cause for the delay.

b. In misdemeanor cases, irrespective of a 60-day per se rule, an unexplained, extended delay raises an inference of prejudice shifting the burden of proof to the People to present justification to be balanced against the prejudice.

c. In a misdemeanor case, a defendant's federal constitutional right to a speedy trial (U.S.Const., amends. VI, XIV, § 1) is violated by a delay between issuance of an arrest warrant and arrest.

At the outset, however, we address the People's contention that these matters are not properly before us.

Code of Civil Procedure section 904.1 allows an appeal in a misdemeanor case from a judgment of the superior court denying a writ. (See Bloom v. Municipal Court (1976) 16 Cal.3d 71, 75, 127 Cal.Rptr 317, 545 P.2d 229; Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 111 Cal.Rptr. 539; and Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 728, 140 Cal.Rptr. 897.) Burrus, supra, discusses a "loophole" provided by Code of Civil Procedure section 904.1 in great detail, and urges a change in the section so that the judgment of the superior court denying a municipal court pretrial writ would not be an appealable order. Gilbert reiterates the criticism, and points out that such a change was proposed subsequent to Burrus but was not adopted by the Legislature. Indeed, there has been no change in the section. Thus, the judgment is appealable.

Still, there is a suggestion in Gilbert, urged here by respondent, that the appellate court need not reach the merits of the ruling of the lower court. And respondent relies on Provencher v. Municipal Court (1978) 83 Cal.App.3d 132, 147 Cal.Rptr. 615 to urge us to decline to reach the merits here, even if we read the record below to indicate that the court below reached the merits.

We decline respondent's invitation to limit our review to whether or not the superior court abused its discretion in denying the writ. The ruling by the municipal court (that appellant was required to make an adequate showing of prejudice prior to the People producing evidence of justification) if in error would require appellant to go through the expense of a trial before he could obtain review of his constitutional claim. Moreover, on appeal from a judgment of conviction, he would be required to show actual prejudice, even if that should not have been his burden in a pretrial hearing. (Compare People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738 and Owens v. Superior Court (1980) 28 Cal.3d 238, 168 Cal.Rptr. 466, 617 P.2d 1098.)

The merits of this case are properly before us.

1. State Constitutional Right to a Speedy Trial

Appellant relies on Harris v. Municipal Court (1930) 209 Cal. 55, 285 P. 699 and Rost v. Municipal Court (1960) 184 Cal.App.2d 507, 7 Cal.Rptr. 869 to argue here, as he did below, that a presumption of prejudice arises in a misdemeanor case when there is an unreasonable "post-complaint" delay in bringing the defendant to trial. To rebut this presumed prejudice, he contends, it is the prosecution's burden to show good cause for the delay. By "post-complaint" delay, he means the passage of time from the filing of the misdemeanor complaint and issuance of an arrest warrant up until the time the defendant is brought to trial. Appellant recognizes that he thus argues a rule for misdemeanors different from that for felonies.

Respondent appears to concede that Harris and Rost are controlling in misdemeanor cases, although he, too, points out that this creates a different rule for misdemeanors than for felonies and suggests that the distinction is unwarranted.

Before we discuss appellant's argument, however, a review of the rules governing an evaluation of a defendant's speedy trial and due process rights in the felony context will be helpful. As will be seen, we believe that the rules in misdemeanor cases are no different.

In People v. Allen (1979) 96 Cal.App.3d 268, 158 Cal.Rptr. 54, we discussed the stages at which speedy trial rights come into play in the felony context.

First, postindictment delay, a lapse of more than 60 days between the filing of an indictment or information and trial, violates the statutory implementation of the speedy trial guarantee of the California Constitution (art. I, § 15). That statutory guarantee for felony prosecutions is set forth in Penal Code section 1382, subdivision (2) as follows: ¹

2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after such mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court, or after the issuance of a writ or order which in effect grants a new trial, within 60 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney, or within 90 days after notice of the writ or order is filed in the trial court and served upon the prosecuting attorney in any case where the district attorney chooses to resubmit the case for a preliminary examination after an appeal or the issuance of a writ reversing a judgment of conviction upon a plea of guilty prior to a preliminary hearing in a municipal or justice court; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.

The statutory guarantee of a speedy trial is also set forth in sections 1381 and 1381.5, governing persons imprisoned on other offenses. ²

When there has been a violation of the statutory guarantee of a speedy trial constitutional right, prejudice to the accused is presumed. He need not make any showing of actual prejudice. There is no balancing of his prejudice against the People's justification. Rather, the People have the burden of showing good cause for delay. ³

In addition to the statutory guarantee of a speedy trial, the California Constitution guarantees a nonstatutory speedy trial right. This we referred to in Allen as a guarantee against "pre-arrest " delay the time between the issuance of an arrest warrant and the arrest on the warrant of the defendant. As People v. Jackson (1979) 95 Cal.App.3d 397, 398, 157 Cal.Rptr. 154, notes, a felony arrest warrant is issued by a magistrate after a review of a complaint. (Pen.Code, §§ 806, 813.) While the right involved at this stage is a constitutional speedy trial right, it is non-statutory. No prejudice is presumed from any delay. As the ...