Partain v. Municipal Court

KINGSLEY, J. Petitioner, being then imprisoned in the federal penitentiary at McNeil Island, Washington, petitioned this court for a writ to compel respondent municipal court to dismiss a criminal proceeding then pending against him in that court.

The petition alleged petitioner’s federal incarceration; that a complaint, charging two counts of forgery, a felony, had been filed against him in respondent court by the District Attorney of Los Angeles County, and that a warrant for petitioner’s arrest had been issued on said complaint but remained unserved; that petitioner had formally requested respondent court to set the matter for a speedy trial or to dismiss the same and that no action had been taken on the motion ; that petitioner’s right to a fair trial was being denied by reason of the delay in bringing the forgery case to trial; and that procedures existed by which, if invoked, petitioner would be made available to the district attorney by the federal prison authorities for the purpose of proceeding with the forgery prosecution.

I

In light of the declared legislative policy of this state, as discussed in People v. Sidener (1962) 58 Cal.2d 645, [25 Cal.Rptr. 697, 375 P.2d 641], we would not, at least on this showing, undertake to exercise our discretion in favor of a peremptory order to dismiss. We regard our function as being served, and the rights of such a petitioner as being protected, by proceedings which, if the district attorney does not elect to exercise his discretion of dismissal, require him to show cause why he should not take steps to bring the pending ease on for an early trial.

Treating the petition as one invoking our full powers, we is[409]sued such an order to show cause directed to the District Attorney of Los Angeles County.

Petitioner requested the appointment of counsel in this court. Since the matter before.us was not an appeal from an order or judgment of the superior' court, and since an examination of the documents then before us did not indicate that appointment of counsel would be advantageous either to petitioner or to the court, the request was denied.

On March 28, 1963, the district attorney replied to our order to show cause, reporting that, in the interim between the filing of the petition and the return, petitioner had been transferred from the federal prison in Washington to a federal prison in this county, and that he was scheduled to be released from that institution on April 28, 1963—a date less than 30 days from the date on which the order to show cause was returnable.