Tudman v. Superior Court

California Court of Appeal Dec 1, 1972 No. Docket Nos. 40683, 40684Published

Before: Files

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Holding. The court held that the trial court erred in denying the defendants' motions to dismiss because the prosecution failed to bring the case to trial within the statutory 10-day grace period following the last date to which the defendants consented, and no good cause existed for the subsequent delay.

Issues

Whether the trial court was required to dismiss the criminal action under Penal Code section 1382 for failure to bring the defendants to trial within the statutory time limits.
Whether the 10-day grace period provided by Penal Code section 1382 restarts following a continuance granted over the defendant's objection.

Disposition. remanded with instructions to issue a writ of mandate

Quotations verified verbatim against the opinion

“The effect of the 1959 amendment is to allow a 10-day grace period for bringing the case to trial after the last day to which a defendant has consented. It does not start a new grace period following a postponement made over the defendant’s objection.”

“Since the case was not brought to trial within the time allowed by law, section 1382 made it the duty of the superior court to grant the defendants’ motions to dismiss.”

[131]

Opinion

FILES, P. J.

Petitioners here are two defendants in a criminal prosecution in the superior court seeking a writ to compel that court to dismiss the action upon the ground of failure to try the case within the time allowed by Penal Code section 1382. The material facts are not in dispute.

By an indictment presented September 2, 1971, defendants were charged with grand theft (Pen. Code, § 487). With the consent of defendants the joint trial was set for February 24, 1972.

On February 24 defendant McLaughlin requested a continuance upon the ground he wished to change attorneys. Defendant Tudman answered ready, and objected to any continuance. The court overruled the objection and continued the trial to May 18.

On May 18 McLaughlin appeared with new counsel, who asked for time to prepare. Tudman objected to any continuance and moved for a severance. Tudman’s motion was denied and the trial was continued to June 23.

On June 23 both defendants answered ready for trial. The People requested a continuance upon the ground that the district attorney wished to assign a different deputy to the case, so that the deputy previously assigned would be available to try another pending case. Defendants both objected to any continuance, but these objections were overruled and the trial was continued to July 7.

On July 7 all parties were ready for trial, but the judge before whom they appeared stated there were no courtrooms available, and ordered the case to be trailed. The case continued to trail — i.e., to await the availability of a trial department — from day to day until July 17, when the case was assigned to Judge Older for trial in department 104. Defendant McLaughlin then filed an affidavit of claimed prejudice, under Code of Civil Procedure section 170.6, automatically disqualifying Judge Older. The case continued to trail until July 19, when each defendant made a motion to dismiss the proceeding upon the ground the case had not been brought to trial within the time allowed by Penal Code section 1382, subdivision 2. As a part of the basis for the motions to dismiss counsel entered into a stipulation that the clerk of department 1 (the civil master calendar department) would testify that civil cases were sent out for trial on each and every day from July 7 to July 19. The motions to dismiss were denied.

Tudman v. Superior Court

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FILES, P. J.

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