People v. Molinari

SCHAUER, J.

Defendant appeals from a conviction in the municipal court of violation of subdivision 3, section 311 of the Penal Code, a misdemeanor (printing and keeping for sale indecent pictures), and among other contentions insists that he is entitled to a reversal of the judgment upon the ground that his constitutional right to a speedy trial was violated. The record upholds defendant’s contention in this regard.

The complaint was filed on May 12, 1936, and trial was originally set for June 18, 1936, on which date the hearing was postponed to September 30, 1936. Whether this continuance was at the request of the prosecution, as stated in the minutes of the court, according to the certified copy thereof in the file, or upon motion of the defendant as recited in the settled statement on appeal, is immaterial, as in either event it appears from the record that such motion was made “on the ground that prosecution was pending in the Federal Court” and that “At that time the defendant, in open Court, personally waived the statutory time for trial and any objection to the delay”. On September 30th, when the cause was called for trial defendant answered ready, but the trial court, upon motion of the city attorney and over defendant’s objection to any further delay whatsoever, ordered a continuance to November 17, 1936. On that date when the case was called for trial defendant moved to dismiss the complaint because the trial had been postponed more than 30

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days (subsequent to September 30th) over his objection, and such motion having been denied and the defendant having been adjudged guilty after a trial by the court, lie moved to arrest judgment upon the ground “that the defendant was not brought to a speedy trial and that the cause was continued beyond the thirty-day statutory time over the objection of the defendant, in violation of his constitutional rights to a speedy trial”, which motion was also denied. While the point involved does not furnish a ground for arrest of judgment (see sec. 1452, Pen. Code), it is properly raised by defendant’s above-mentioned objection and motion to dismiss.

Section 13, article I of the Constitution of California provides that “In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy . . . trial” and section 1382 of the Penal Code directs that “The Court, unless good cause to the contrary is shown, must order the prosecution to be dismissed . . .

“3. If a defendant in a misdemeanor case in a justice’s court, whose trial has not been postponed upon his application, is not brought to trial within thirty days after the defendant is arrested and brought within the jurisdiction of the court.’’