Ciaccio v. Superior Court

Opinion

WALLIN, Acting P. J.

Petitioners were examined and committed pursuant to Penal Code section 872

1

on a felony complaint charging a violation of Health and Safety Code section 11351 (possession for sale of a narcotic). They sought section 995 relief on section 1382, subdivision l

2

and other grounds when real party failed to file the superior court information within 15 days of the section 872 order as required by section 739.

3

Although real party failed to present facts sufficient to excuse the late filing, respondent determined counsel’s mute acquiescence in the arraignment date chosen by the magistrate constituted a waiver of petitioners’ speedy trial rights and denied their motion in its entirety. Since we conclude the section 739 violation requires the prosecution be dismissed, we need not address the other issues raised in petitioners’ application for extraordinary relief.

The mandatory language of section 1382, subdivision 1 requires dismissal unless the People show good cause for the late filing. The People made no attempt to invoke the good cause exception below and they have failed to do so here. They instead rely upon the familiar rule that statutory speedy trial rights may be waived. (See, e.g.,

Townsend

v.

Superior Court

(1975) 15 Cal.3d 774 [126 Cal.Rptr. 251, 543 P.2d 619].) However, the waiver exception to the section 1382 mandate has traditionally been invoked only in section 1382, subdivision 2 and section 1382, subdivision 3 cases. The sole reported decision applying the waiver doctrine to section 1382, subdivision 1 facts is

People

v.

Murray

(1967) 247

[133]

Cal.App.2d 730 [56 Cal.Rptr. 21]. That court found a waiver where “[t]he record indicate[d] that [the] late filing date was specifically requested by defendant’s counsel for his convenience, and that defendant personally agreed to the date.”