Baker v. Superior Court

[262]Opinion

BOREN, J. Petitioner challenges an order of the respondent court denying his motion to dismiss for failure to commence his trial within the time limits set forth in Penal Code section 1382. We grant the petition.

Facts

An information filed on May 3, 1989, charged petitioner with commercial burglary (Pen. Code, § 459). The provisions of Penal Code, section 1382, required the People to bring petitioner to trial within 60 days of that date.1

The matter was continued several times for pretrial hearing to May 25. On that date, petitioner, who had been free on bail, notified the court that he could not get off work to attend court that day. The court issued a bench warrant, petitioner appeared the next day, and the warrant was recalled.

At another pretrial hearing on June 13, the respondent court set the case for trial on July 14, despite petitioner’s objection that under section 1382, trial must commence by July 3. The court, however, accepted the People’s position that petitioner’s failure to appear on May 25, and the ensuing bench warrant, started the 60-day period running anew.2 On July 7, a date beyond the initial 60-day period, petitioner filed a motion to dismiss. The motion was denied and this petition followed.3

[263]Clearly, petitioner’s failure to appear on May 25 did not prevent the court from setting the case for trial within the initial 60-day period. The most that can be said for this failure to appear is that it delayed proceedings by one day, and in any event the one-day delay did not toll or extend the initial 60-day period in any way. (Owens v. Superior Court (1980) 28 Cal.3d 238 [168 Cal.Rptr. 466, 617 P.2d 1098].) Thus, because the court set petitioner’s case for trial beyond the 60-day period, without good cause, the case must be dismissed.

Discussion

The People now concede the lack of any statutory authority for the proposition that petitioner’s failure to appear on May 25 commenced a new 60-day period. However, the People take heart from the language quoted in footnote 2, ante, to the effect that when a case is set for trial beyond the 60-day period at the request of the defendant, but the defendant fails to appear on that date and a bench warrant is issued, a new 60-day period commences on the date the defendant next appears. Despite the absence of any similar language relating to the initial 60-day period, the People argue that the “failure to appear” provision should likewise apply where the defendant fails to appear during that time.