People v. Hernandez

California Court of Appeal Oct 2, 1979 No. Crim. 34260Published

Before: Ashby

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Holding. The trial court erred in dismissing a criminal case under Penal Code section 1382 before the expiration of the 10-day statutory grace period, as the prosecution is not required to show good cause for a delay within that timeframe. Furthermore, a dismissal within this period cannot be justified under Penal Code section 1385 because it contradicts established legislative policy.

Issues

Whether a trial court may dismiss a case under Penal Code section 1382 when the prosecution is not ready to proceed but the 10-day statutory grace period has not yet expired.
Whether a dismissal within the 10-day grace period of section 1382 can be sustained as a dismissal in the 'furtherance of justice' under Penal Code section 1385.

Disposition. reversed

Quotations verified verbatim against the opinion

“No showing of good cause by the prosecution is necessary for a continuance to a date which is within the 10-day grace period.”

“The People correctly contend that the trial court had no discretion . to dismiss the case on August 17, which was prior to the expiration of the statutory 10-day period”

“A dismissal within the 10-day period would be contrary to legislative policy and thus not in furtherance of justice.”

Opinion

ASHBY, J.

In this robbery prosecution (Pen. Code, § 211), the People appeal from an order of dismissal entered pursuant to Penal Code section 1382. (Pen. Code, § 1238, subd. (a)(8).)

Penal Code section 1382 provides in pertinent part: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: [U] 2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . .;

except

that an action

shall not be dismissed

under

[453]

this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and

if the defendant is brought to trial on the date so set for trial or within 10 days

thereafter.” (Italics added.)

In this case respondents Hernandez and Asch, through their counsel, consented to a trial date of August 10, 1978, which was more than 60 days from the filing of the information on May 11, 1978. The 10-day grace period in section 1382 began running on that date

(Tudman

Superior

Court, 29 Cal.App.3d 129, 133 [105 Cal.Rptr. 391]), and the trial court so assumed when it ordered on August 10 that “The court, due to congested calendar, trails trial to a date not later than 8-21-78 [August 20 being a Sunday].” After consultation with the trial coordinator as to how long the trailing time was likely to be, the court on August 10 ordered the parties to return on August 18.

However, on August 17 the cause was called for trial. Counsel for respondents Hernandez and Asch announced that they were ready to proceed. The prosecutor announced he was not ready to proceed, because the robbery victim was unavailable. “We had a subpoena that we mailed to the person named in the Information as the victim, that is Mr. Rodolpho Ramirez. After this case was announced ready, I understand we received the subpoena back in the mail that there was no such person at that address. [If] Even today I’m having a man go out to that particular area and try to subpoena him.”

People v. Hernandez

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ASHBY, J.

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