People v. Kessel

California Court of Appeal Jul 20, 1976 No. Crim. 15238Published

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Holding. The trial court abused its discretion by dismissing the action under Penal Code section 1385, as the prosecution's request for a continuance fell within the 10-day grace period allowed by Penal Code section 1382 and there was no showing of prejudice to the defendant.

Issues

Whether the trial court erred in dismissing the action under Penal Code section 1382 when the requested continuance fell within the 10-day grace period.
Whether the trial court abused its discretion in dismissing the action under Penal Code section 1385 in the absence of a showing of detriment to the defendant.

Disposition. reversed

Quotations verified verbatim against the opinion

“Good cause must be shown for any further delays beyond the 10-day period allowed by section 1382. But no showing of good cause was necessary in support of the People’s request to bring respondent to trial”

“A dismissal under Penal Code section 1385 would also be an abuse of discretion, since there was no showing of detriment to respondent.”

“The People’s right to be heard cannot be frustrated to accommodate judicial convenience or because of court congestion.”

Opinion

THE COURT.

The People have appealed from an order dismissing an information which charged respondent Frank Roger Kessel with

[324]

battery upon a peace officer (Pen. Code, §§ 242, 243) and drunk driving (Veh. Code, § 23102, subd. (a)).

Upon respondent’s plea of not guilty, the cause was set for trial on January 13, 1976; there was no objection by the defense, though the information had been filed on November 10, 1975.

Continuances were had, either at the request of the defense, or without objection, until February 2, 1976. On that date, a seven-day continuance was granted to the People, without objection. On February 9, 1976, an additional seven-day continuance, requested by the People, was denied. The information was then dismissed upon motion of the defendant, and the present appeal followed.

The February 9 request for an additional seven-day continuance was made on the ground that the deputy district attorney assigned to the case was presently unavailable. "After the request was denied, the case was assigned to another department for trial. A delay of several hours ensued. Later an additional delay of some hours was granted to the district attorney because he had no available prosecutor to handle the case. Finally, later the same afternoon, the case was called for trial, and a deputy district attorney informed the court that because he had just been assigned to the case he was unacquainted with the facts; he requested a continuance of one week, “[t]he People not being ready to proceed.”

Respondent contends that the court acted within the bounds of its discretion in dismissing the case under Penal Code section 1382.

Respondent argues that although he consented to a trial date beyond the 60-day period specified in section 1382 (Feb. 2, 1976), he was not “brought to trial” on that date or within 10 days thereafter. Instead, the district attorney requested another continuance on February 9, which if granted would have delayed the trial 4 days beyond the 10-day grace period allowed by section 1382. Respondent submits that the work load of the district attorney does not constitute good cause for delay beyond the 10-day grace period, especially in light of the numerous continuances and delays which had already been allowed. Relying on

People v. Kessel

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THE COURT.

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