Dearth v. Superior Court

In this proceeding petitioner seeks a writ of mandamus to require the Superior Court of Los Angeles County to dismiss a criminal action pending against him on the ground that he has not been brought to trial within the time required by law. From the petition and the answers thereto the following facts appear: An information was filed against petitioner in the superior court on February 21, 1940, charging him with the violation of subdivision 3 of section 337a of the Penal Code. He entered a plea of not guilty in department 41 on February 26th, and his trial was set for March 27th in department 44. On the last-mentioned date petitioner appeared in department 44 and answered ready for trial but the judge presiding in that department on his own motion continued the trial to April 22d, at which date petitioner again appeared ready for trial but the trial date was continued to April 23d. Petitioner appeared on

The Constitution of California, article I, section 13, provides that in criminal prosecutions “the party accused shall have the right to a speedy and public trial”. In section 1382 of the Penal Code it is provided: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: ... 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.” In 1927 the legislature added section 1050 to the Penal Code by which it is provided that criminal eases shall be given precedence over civil matters and that if the court is unable to hear all criminal cases pending before it within 30 days after the respective defendants have entered their pleas it must immediately notify the chairman of the judicial council. Upon the constitutional provision and in accordance with the requirement of section 1382 of the Penal Code it was the duty of the court to dismiss the action against petitioner unless good cause was shown why the action was not sooner brought

It is pointed out by respondent that petitioner is deemed to have consented to several of the continuances for the reason that no objections were made at the time the continuances were ordered. Be that as it may, there can be no question but that petitioner objected to a further continuance on April 24th in department 44 and also on April 26th in the master calendar department. The 60-day period had at that time expired and no sufficient cause was shown why petitioner could not have been brought to trial at the times when his motions for dismissal were made. The nearest approach to a showing of cause for delay appears in the answer filed herein on behalf of respondent in which it is set forth that a protracted criminal trial had been transferred to a civil department of respondent court and that for this reason the presiding judge had assigned civil cases to department 44. To comply with the provision contained in section 1050 of the Penal Code that criminal matters should be given precedence over civil matters and to enable defendants in criminal actions to have the speedy trials which are guaranteed by the Constitution, a greater number of judges should have been assigned to departments handling criminal matters. There are fifty judges in the Superior Court of Los Angeles County, and the showing that a large number of civil cases were pending does not excuse the failure to assign a sufficient number of judges to handle criminal matters. Nor was there any showing made that the chairman of the judicial council was notified that a sufficient number of judges was not available to try criminal cases. In rule 25, adopted by the judicial council for the guidance of the superior court, it is provided that the departments handling criminal cases “shall be sufficient in number to hear all criminal eases within the time required by law ’ ’. Petitioner is unquestionably entitled to relief by a proceeding in mandamus. (In re Ford, supra.)

Let a peremptory writ issue.

McComb, J., concurred.