Cunningham v. Municipal Court

[155]

Opinion

COBEY, J.

Petitioner, Herman Cunningham, asks this court to compel, through the issuance of the appropriate extraordinary writ, respondent court to dismiss the criminal action against him pending in that court for the alleged commission of two misdemeanors (Veh. Code, § 42002) (drunk driving, Veh. Code, § 23102, subds. (a) (c); driving while unlicensed, Veh. Code, § 12500) on the ground that he has been denied,

without good cause,

his right to a speedy trial as provided in Penal Code section 1382, subdivision 3.

This subdivision, insofar as it applies to this case, provides that an action must be dismissed if a defendant in a misdemeanor case in an inferior court (who is not in custody at the time of his arraignment) is either not brought to trial within 45 days after such arraignment; or where he requests or consents to trial on a date beyond the prescribed period, is not brought to trial on that date or within 10 days thereafter.

In this case, petitioner, free from custody, was arraigned on February 4, 1976, and thereafter consented to trial on April 5, 1976. On this date, on motion of a deputy city attorney and over his objection, his trial was continued to May 25, 1976. This motion was supported by a declaration of the arresting officer, executed on March 29, 1976, that the officer could testify to all the facts contained in his arrest report but that his commanding officer had ordered him to take his vacation from April 2, 1976 to May 18, 1976, and that therefore he would be out of the County of Los Angeles on a vacation trip during that period.

1

On May 6, 1976, petitioner moved to dismiss the case on the ground of lack of a speedy trial. The trial court denied the motion. Since petitioner both objected to the date set for trial and then filed a timely motion to dismiss, he did not waive his right to a speedy trial. (See

People

v.

Wilson, 60