Callahan v. Municipal Court

Opinion

ALLPORT, J. The People appeal from an order of the superior court granting a peremptory writ of prohibition and from the judgment entered thereon. The judgment restrains the Municipal Court of the Inglewood Judicial District from taking any further proceedings against petitioner Patrick Allen Callahan and dismisses charged violations of Vehicle Code sections 14601, subdivision (a) (driving with a revoked or suspended license) and 23102, subdivision (a) (drunk driving).

The matter is before us on a transcript of the docket in the municipal court. This document discloses that defendant was arraigned on January 30,1970, at which time he was advised of his constitutional rights including the right to a speedy trial to be held within 45 days. He was released on bail. (Pen. Code, § 1382, subd. 3.)1 Trial was set for March 10, 1970. [1014]On March 4, 1970, the cause was advanced on the calendar at which time defendant moved for a continuance. His motion was granted. The case was reset for April 14, 1970. On January 30 and March 4 defendant was without counsel. On April 14, 1970, a motion by his counsel to dismiss pursuant to Penal Code section 1382, subdivision 3, was made and denied. The cause was trailed until April 15, 1970, on which date the petition for writ of prohibition was filed. The record does not indicate that defendant requested any particular trial date or that he objected to the date upon which trial was set by order of the court.

It was successfully argued by defendant before the superior court that, in the absence of counsel, consent to the establishment of a trial date in excess of the 45-day period provided in section 1382, subdivision 3, is ineffective unless the court explains to the defendant his rights under this section and the effect of his consent to the new trial date. It is suggested on appeal that, since defendant was not asked to waive his right to a speedy trial and did not specifically ask for a date in excess of 45 days the trial date of April 14, 1970, was constitutionally defective. We do not agree.

We believe a fundamental difference exists between a situation where the case is continuéd on motion of the court or the prosecution and a situation in which a defendant himself, knowing he has a right to be tried within 45 days, seeks a continuance, and it matters not by whom the actual date is selected. Consent is defined as: “A concurrence of wills. Voluntarily yielding the will to the proposition of another;. . .”2 Where a continuance is sought by the court or by the prosecution, consent to both the fact of continuance and the date of trial by the defendant is required by definition. Under such circumstances the “explanation” provisions of section 1382 become effective. On the other hand, where the continuance is requested by the defendant, consent to the continuance and to the date of trial by the court and the prosecution is required, not consent by the defendant. Under the latter circumstances the “explanation” requirements of section 1382 do not come into play. The need for the safeguards provided by section 1382 is apparent where a defendant without counsel is asked to consent to