Huerta v. Superior Court

California Court of Appeal Jun 25, 1971 No. Docket Nos. 38358, 38378Published

Before: Kingsley

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Holding. The court held that amending an information to add prior felony convictions does not automatically restart the 60-day statutory period for bringing a defendant to trial under Penal Code section 1382.

Issues

Does the filing of an amended information adding prior felony convictions automatically toll the 60-day period for a speedy trial under Penal Code section 1382?

Disposition. remanded

Quotations verified verbatim against the opinion

“we are cited to no authority, and we know of none, that holds that the amendment of an information by adding a matter not going to the substance of the charge automatically tolls the running of the 60-day period”

“No clearer case of a violation of section 1382 could be found.”

[484]

Opinion

KINGSLEY, J

On January 21, 1971, an information was filed in respondent court, charging petitioners with burglary, in violation of section 459 of the Penal Code. They were arraigned on January 25, 1971, and pled not guilty. Trial was set for March 16, 1971. On that date, the information was amended by adding allegations charging petitioner Huerta with five prior felony convictions and petitioner Gonzales with three prior felony convictions. Petitioners were arraigned on the amendments and denied the priors. The case then trailed “because of a congested calendar” on the 16th, 17th and 18th. On the 18th it was continued until March 22, the minutes containing an entry that the court had determined that “March 22, 1971, is the 60th day from the date of filing the information.” On March 22, both defendants were present and their counsel announced they were ready for trial; counsel were instructed to remain on call for an open court. They were not called and the case was trailed, on the court’s own motion, to March 23 “because of congested calendar.” On March 23, petitioners moved, pursuant to section 1382 of the Penal Code, for a dismissal. The motion was denied. The present petitions followed. We issued alternative writs of prohibition. The matter has been briefed and argued. We issue a peremptory writ of mandate in the form hereinafter set forth.

It is admitted that other departments of respondent court were open on March 22, to which the case could have been transferred for trial and in which it could have been tried. It is also admitted that petitioners moved promptly to seek dismissal under section 1382. The sole excuse urged on us by the real party in interest is the contention that the filing of the amendment on March 16 started running a new 60-day period within which to bring the case on for trial. We do not agree.

In support of their contention, the People refer us to the following language in

People

Pierson

(1957) 149 Cal.App.2d 151, 159 [307 P.2d 994]: “It seems to be the rule that the 60-day period is reinstated not only by a mistrial

Huerta v. Superior Court

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KINGSLEY, J

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