Rost v. Municipal Court of Southern Judicial Dist., SanMateo County

• Decision Date: 12 September 1960
• Docket Number: No. 19438,19438
• Citation: 7 Cal.Rptr. 869,85 A.L.R.2d 974,184 Cal.App.2d 507
• Parties: , 85 A.L.R.2d 974 Daniel B. ROST, Petitioner, v. MUNICIPAL COURT OF THE SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, Respondent.
• Court: California Court of Appeals Court of Appeals

Page 869

7 Cal.Rptr. 869

184 Cal.App.2d 507, 85 A.L.R.2d 974

Daniel B. ROST, Petitioner, v. MUNICIPAL COURT OF THE SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, Respondent.

No. 19438.

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

Sept. 12, 1960.

Rehearing Denied Oct. 7, 1960.

Hearing Denied Nov. 10, 1960.

Stanley R. Evans, for Moerdyke, Anderson, Evans & Rhodes, Palo Alto, for petitioner.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Edward P. O'Brien, Deputy Attys. Gen., for respondent.

BRAY, Presiding Justice.

Petition for writ of prohibition to command the municipal court to desist from further proceedings in a criminal case.

Question Presented.

Does an unexplained delay of approximately 140 days between the filing of a misdemeanor complaint and the arrest of defendant deprive him of his constitutional right to a speedy trial?

Record.

The alleged offense occurred December 16, 1959. The complaint charging defendant with violation of section 23102, Vehicle Code (misdemeanor drunk driving) was filed and warrant of arrest issued January 11, 1960. Petitioner was arrested June 1. June 13, petitioner moved the municipal court in which the complaint was filed for dismissal on the grounds that he had been deprived of his right to a speedy trial, as guaranteed by article I, section 13, California Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. At the hearing the district attorney did not dispute defendant's showing that at all times he was available for arrest, nor did he offer any evidence to explain the delay in serving the warrant. The municipal court denied the motion.

Was Defendant Denied a Speedy Trial?

'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy * * * trial * * *'. (Cal.Const., art. I, § 13.) 'In all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial * * *'. (U.S.Const., Amendment VI.)

It is rather interesting to note that while there are a number of cases both in this state and other jurisdictions dealing with the question of what amounts to a denial of a speedy trial after arrest, there is a dearth of authority on the subject as it relates to the time between the filing of a criminal complaint and the arrest. The only case in California on the subject is Harris v. Municipal Court, 1930, 209 Cal. 55, 285 P. 699. There a peremptory writ of mandate was issued to terminate the prosecution of a misdemeanor charge in the municipal court. The circumstances of the case were unustual. During the receivership of the Julian Petroleum Corporation it was discovered that various individuals had been paid large sums of money by the corporation in excess of the rate of interest permitted by law. The receivers brought several actions to recover this usurious interest. About the same time the city prosecutor, in order to assist the receivers in collecting the amounts paid as usurious interest, caused to be filed in August, September and October of 1927, 143 complaints charging the crime of usury, a misdemeanor. He then caused a statement to be published to the effect that in every instance if restitution of the usurious interest was made to the receivers the criminal complaint would be dismissed. In each instance the defendant was named as 'John Doe' or by other fictitious name. The complaint on which Harris was arrested was filed October 5, 1927, and a warrant issued thereon. The defendant was designated in the complaint as John Doe. The warrant remained in the city prosecutor's office until May 1, 1929, when it was delivered to a peace officer who that day served it on Harris. During all this time Harris was known to the city prosecutor as being a resident and business man of the city. Harris moved the municipal court to dismiss the complaint on the ground, among others, that he had been denied a speedy trial because he had not been informed of the charge against him while the pertinent evidence was available. No showing was made by the city prosecutor, nor were the above facts as set forth in Harris' petition controverted. The municipal court denied the petition.

The reviewing court quoted section 13, article I, of the Constitution, and said (209 Cal. at page 60, 285 P. at page 701): 'This provision of the Constitution is self-executing. [Citations.]' The court quoted section 1382, Penal Code, subdivision 2, which was to the effect that unless good cause to the contrary is shown, a prosecution must be dismissed in a felony case if the defendant were not brought to trial within 60 days after the finding of the indictment or filing of the information. The court then quoted section 681a: 'The welfare of the people of the State of California requires that all proceedings in criminal cases shall be heard and determined at the earliest possible time. It shall be the duty of all courts and judicial officers and of all district attorneys to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice.' 209 Cal. at page 61, 285 P. at page 701. ¹ The court goes on to discuss what is a 'speedy trial' as the words are used in the Constitution, and says that by section 1382 requiring a defendant in a felony case to be brought to trial within 60 days after the finding of the indictment or the filing of the information, 'the Legislature by necessary inference had said that a trial delayed more than sixty days without good cause is not a speedy trial * * *'. 209 Cal. at page 61, 285 P. at page 701. It then said (209 Cal. at page 62, 285 P. at page 701): 'We have been referred to no statute or case, and we have found none in this state, compelling the dismissal of a misdemeanor charge in a court inferior in jurisdiction to the superior court, but no reason appears to justify a refusal to enforce the self-executing provision of the Constitution in such a case. The Constitution says that in criminal proceedings, in any court whatever, the party accused shall have the right to a speedy trial,' and, 'It would be most unreasonable to hold that a delay of eighteen months in the trial of the action was not in violation of the constitutional right to a speedy trial when, as here, it is admitted that the petitioner was at all times available for the service of process and that the delay was not at all traceable to him. The only reason for the delay found in the petition herein is that the prosecution was commenced for the purpose of coercing the payment of a money claim from the person so sought to be prosecuted, and the cause was not brought to trial in order to effect that purpose. Such a course of action was an abuse and perversion of the criminal process, was wholly unjustifiable and constituted no excuse for the delay.' 209 Cal. at pages 62-63, 285 P. at page 702. Finally, the court held that, being deprived of his constitutional right to a speedy trial, Harris was not required to 'affirmatively show prejudice. Prejudice will be presumed from the violation of this constitutional right. It is enough for the defendant to show that the prosecution has been unreasonably delayed. It will not be presumed that good cause for the delay in fact existed. If there was any good cause, it was for the prosecution to show it. People v. Morino, supra [85 Cal. 515, 24 P. 892]; In re Begerow, supra [133 Cal. 349, 65 P. 828, 56 L.R.A. 513]. If good cause be shown, the defendant is not entitled to relief. In re Gere, 64 Cal.App. 418, 221 P. 689. Here no good or any cause has been shown either in the respondent court or in this court, other than the whim of the prosecution.' 209 Cal. at page 64, 285 P. at page 702. The court stated that the facts in United States v. Kojima, 3 Hawaii, Fed. 381, were 'strikingly similar to those in the present case. It was there held that the commencement of the reasonable time within which a defendant must be tried is not postponed until the time of his arrest, when, as here, he was at all times available for the service of process.' 209 Cal. at page 64, 285 P. at page 702. In the Kojima case an unexplained delay of over five years occurred between the time of the finding of the indictment and the arrest.

That it is not necessary to have specific legislation to carry into effect section 13 of article I is shown by Zamloch, For and on Behalf of Cowan v. Municipal Court, 1951, 106 Cal.App.2d 260, 235 P.2d 25. There the defendant was held to have been denied his right to a speedy trial when over the defendants' objection the trial of the case was continued from the original date set for trial, indefinitely as to one defendant and some eight days as to the other. (There had been a series of continuances prior thereto with the consent of the defendants.) The court pointed out that while at that time there was no statute requiring...