Avila v. Municipal Court

California Court of Appeal Nov 8, 1983 No. 68698Published

Before: Dalsimer

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Holding. The court held that a violation of the statutory right to a speedy trial under Penal Code section 1382 is a cognizable issue on appeal from a misdemeanor conviction following a plea of nolo contendere. Because the appellant's time to file a direct appeal had passed, the court treated the appeal as a petition for a writ of mandate to allow the filing of a late notice of appeal.

Issues

Whether a violation of Penal Code section 1382 is cognizable on appeal following a misdemeanor plea of nolo contendere.
Whether the court should grant relief to an appellant who pursued an appeal of a denied pretrial writ that became moot due to a subsequent conviction.

Disposition. Dismissed; writ of mandate issued.

Quotations verified verbatim against the opinion

“We hold that denial of the statutory right to a speedy trial (Pen. Code, § 1382) is a cognizable issue on appeal from a judgment of conviction following a plea of guilty or nolo contendere to a misdemeanor.”

“a section 1382 error requires reversal and dismissal of a misdemeanor conviction without any showing of prejudice”

“the rationale for the holding that a speedy trial issue is not cognizable following a guilty plea simply does not apply to a misdemeanor conviction.”

148 Cal.App.3d 807 (1983) 196 Cal. Rptr. 286 STEVEN JACK AVILA, Plaintiff and Appellant,

THE MUNICIPAL COURT FOR THE RIO HONDO JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent.

Docket No. 68698. Court of Appeals of California, Second District, Division One.

November 8, 1983. [809] COUNSEL

Rolf M. Treu, under appointment by the Court of Appeal, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Robert H. Philibosian, District Attorney, Donald J. Kaplan and Arnold T. Guminski, Deputy District Attorneys, for Real Party in Interest and Respondent.

OPINION

DALSIMER, J.

Plaintiff, Steven Jack Avila, appeals from a superior court judgment denying a peremptory writ of prohibition. Plaintiff's sole claim in the writ and this appeal is that the municipal court violated his Penal Code section 1382 speedy trial rights by setting the cause for trial after the statutory period ended without establishing good cause for the delay. Because of procedural infirmities in the instant appeal, we do not reach the merits of plaintiff's speedy trial claim.

On January 27, 1982, plaintiff was charged in municipal court with violations of Vehicle Code section 23152, subdivisions (a) and (b). On March 11, 1982, he pleaded not guilty, and trial was scheduled for May 10, 1982. On May 10, 1982, the case was called and trailed to the following day. It continued to be trailed day by day until Thursday, May 20, 1982. On that day, the tenth since the case had been first called for trial, the case was transferred to a trial judge for trial. Plaintiff filed a peremptory challenge under Code of Civil Procedure section 170.6 against that trial judge. The case was transferred back to the original courtroom. When the case was called there, plaintiff refused to stipulate that the trial take place before an available commissioner. The court ruled over Avila's objection that the peremptory challenge to one judge and the refusal to stipulate to having a commissioner conduct the trial constituted good cause to trail the case over to Monday, May 24, 1982. There is nothing in the record to indicate why the case was not trailed to Friday, May 21, 1982.

Avila v. Municipal Court

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OPINION

DALSIMER, J.

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