Malengo v. Municipal Court

McCOMB, J. This is an application for a writ of prohibition to restrain respondent court from taking any further proceedings in a prosecution for violation of section 11721 of the Health and Safety Code (use of, or addiction to, narcotics).

Facts: September 23, 1960, defendant was arraigned in respondent court on a complaint charging violation of section 11721 of the Health and Safety Code, a misdemeanor. He entered a plea of not guilty and waived a jury trial. Trial was set for October 21, 1960.

■ Defendant obtained counsel, and at the request of such counsel the trial was continued to November 18, 1960. On that date the People moved for a continuance on the ground that witnesses necessary to the People’s case were in federal court and could not appear. No objection was made by defendant, and the trial was continued to January 6, 1961.

On January 6, 1961, the People moved for a continuance of one week on the ground that two witnesses necessary to the People’s case, both deputy sheriffs, were engaged as witnesses in a trial in federal court. Defendant objected.

The deputy district attorney did not support his motion by affidavits or by other formal proof, but at respondent court’s request inquiry was made by telephone to ascertain whether the witnesses could be released at that time.

As a result of the inquiry respondent court was informed that the witnesses would not be released from attendance on the federal trial.

Respondent court again called the case, all parties being present, and granted the People’s motion for a continuance. The trial judge asked counsel for defendant what date would suit him best, and the latter answered, “Well, if I get to pick [815]a date I would say February 3rd,” adding that he was suggesting that date “only because the People’s motion for a continuance has already been granted.” The trial was then continued to February 3, 1961.

Defendant thereafter sought a writ of prohibition in the superior court to restrain further proceedings on the ground that he was not brought to trial within the time required by law. On January 30, 1961, the superior court denied defendant’s petition. Defendant then filed the present petition for a writ of prohibition.

Questions-. First. Assuming that there was not a showing of good cause for the granting of the continuance on January 19, 1961, until February 3, 1961, was it mandatory upon respondent court to dismiss the action pursuant to the provisions of section 1382 of the Penal Code?