Turner v. Municipal Court for Oakland-Piedmont Judicial District

California Court of Appeal Apr 14, 1982 No. Civ. No. 54121Published

Before: Christian

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Holding. The court held that a defendant's failure to appear at the time set for trial constitutes good cause for delay under Penal Code section 1382, justifying a continuance when the defendant has not established a knowing and voluntary waiver of their right to be present.

Issues

Whether a defendant's failure to appear at the time set for trial constitutes good cause for delay under Penal Code section 1382.
Whether a trial court may proceed with a misdemeanor trial in the defendant's absence when the defendant has not authorized counsel to proceed without them.

Disposition. denied

Quotations verified verbatim against the opinion

“Where such possibilities are not excluded, we must proceed under the assumption that the actual cause for the continuance was petitioner’s failure to appear in person at the time set for trial.”

“In these circumstances the court could not have been certain that petitioner knowingly waived his right to be present; therefore, petitioner’s absence was good cause for delay.”

Opinion

CHRISTIAN, J. Timothy Turner petitions this court for a writ of prohibition to restrain respondent municipal court from proceeding with a trial assertedly set in violation of his speedy trial right.

On February 6, 1981, petitioner pleaded not guilty to a charge of petty theft. (Pen. Code, § 484.) Petitioner waived time; the case was set for trial on July 27, 1981. No court was available on that date and a new date was set for August 27, 1981. Again no court was available and trial was set for October 7, 1981.

[646]At the time set for trial petitioner did not appear. His counsel was present and heard that no trial space was available. He then withdrew petitioner’s time waiver and demanded that petitioner be tried within 10 days pursuant to Penal Code section 1382, subdivision 3. Later the same morning, the case was called on the trial calendar; petitioner was still not present. The judge ordered that a bench warrant be issued and vacated the trial date.

At 2 p.m. the same day, petitioner appeared and the case was called again. The judge withdrew the bench warrant but refused to set a trial date within the 10-day period requested by petitioner. Trial was set for November 18, 1981.

On October 29, 1981, the court denied petitioner’s motion to dismiss for failure to try him within 10 days of the withdrawal of his waiver. Petitioner filed in the superior court a petition for writ of prohibition; the petition was summarily denied. Petitioner then filed the instant petition.

An original petition to this court for a writ of prohibition is an appropriate remedy. An appeal from the denial in the superior court of a similar petition is an inadequate remedy because petitioner would be subjected to a criminal trial while pursuing it. (Castaneda v. Municipal Court (1972) 25 Cal.App.3d 588, 591-592 [102 Cal.Rptr. 230].)

Penal Code section 1382, subdivision 3, provides that a defendant in a misdemeanor case who is not in custody must be tried within 45 days after his arraignment. But an action is not to be dismissed under this subdivision: “(1) if it is set for trial on a date beyond the prescribed period at the request of the defendant or with his consent, express or implied, and the defendant is brought to trial on the date so set for trial or within 10 days thereafter or (2) if it is not tried on the date set for trial because of the defendant’s neglect or failure to appear, in which case he shall be deemed to have been arraigned within the meaning of this subdivision on the date of his subsequent arraignment on a bench warrant or his submission to the court.”

Turner v. Municipal Court for Oakland-Piedmont Judicial District

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