
    Appellate Division, Superior Court, Orange County
    [No. 07CC19672.
    July 10, 2008.]
    APOLONIO ARIAS, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
    
      Counsel
    Chad R. Maddox for Petitioner.
    No appearance for Respondent.
    Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Real Party in Interest.
   Opinion

THE COURT.

Apolonio Arias (petitioner) petitioned for writ of mandate to compel the trial court to grant his motion to dismiss based on failure to bring the matter to trial within the time specified by Penal Code section 1382. On August 13, 2007, defense counsel entered a general time waiver on petitioner’s behalf in open court. The matter was set for pretrial on September 17, 2007, and no trial date was set. On August 17, 2007, petitioner filed a pleading captioned “Withdrawal of General Time Waiver.” No further action was taken until September 17, 2007, the date previously set for pretrial. When counsel appeared for pretrial on September 17, 2007, defense counsel contended it was the last day to bring petitioner to trial pursuant to Penal Code section 1382, subdivision (a)(3)(A), in that it was the 30th day after revocation of the general time waiver. The trial court set a trial date of October 9, 2007, and denied petitioner’s subsequent motion to dismiss and motion for reconsideration. Petitioner sought a writ of mandate from this court. This court issued a stay, invited the People to respond and set the matter for hearing.

After consideration of the People’s response and oral argument by both parties, we conclude the writ should be granted in this case for the reasons discussed below. Penal Code section 1382, subdivision (a)(3)(A) provides that a general waiver of the 30-day or 45-day trial requirement entitles the court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. The statute further provides that “[i]f the defendant, after proper notice to all parties, later withdraws his or her waiver, the defendant shall be brought to trial within 30 days of the date of that withdrawal.” (Ibid.) The statute does not specify that withdrawal must be made in open court, or specify any length of notice that is required before the withdrawal becomes effective. In this case the record indicates petitioner served the notice of withdrawal on the People prior to filing of the notice with the court, in that the district attorney’s file stamp appears on the file-stamped copy of the withdrawal. Therefore, the withdrawal was made “after notice” on the People, albeit very short notice. Had the Legislature intended to limit the method of giving of notice of withdrawal, or to require a specific minimum period of notice prior to the effective date of the withdrawal, it could have included such specific requirements in the language of Penal Code section 1382. Lacking such statutory language, we must conclude that petitioner in this case complied with the statutory provision and successfully withdrew his general waiver.

We recognize that our conclusion could have a substantial impact on operation of the trial courts. It is not inconceivable that service of notice of withdrawal in the manner employed in this case could place a significant burden on the People and the trial courts to schedule and commence trials within the 30-day period. Nonetheless, a criminal defendant’s constitutional right to a speedy trial, codified in Penal Code section 1382, cannot be infringed for the convenience of the court, the People, or their witnesses. It is incumbent on the trial courts and the People to provide a defendant with a speedy trial when one is demanded. We leave to those entities creation of the means by which to do so.

Let a writ of mandate issue, compelling the trial court to grant petitioner’s motion to dismiss the complaint.

PRICKETT, J., Concurring.

I agree with the opinion of my colleagues. Following the example of Justice Cornell in People v. Soukomlane, I write separately to suggest steps a trial court could consider when faced with the difficult circumstances presented by a withdrawal of a general time waiver by a court filing and not in open court.

First, supervising judges may wish to implement a specific policy requiring the filing of such pleadings directly in the courtroom and not in the clerk’s office. Or, in the alternative, a trial judge accepting a general time waiver may wish to require, as a condition of accepting such waivers, that counsel agree to file such pleadings in the courtroom.

Second, a trial judge may wish to have counsel agree when entering a general time waiver that, in the event they withdraw it by pleading, they have offered suggested trial dates in their waiver.

Third, when counsel is entering a general time waiver, a trial court should inquire of counsel for an acceptable procedure for calendaring a trial date upon revocation of a general time waiver, including discussing whether counsel has authority under Penal Code section 977 to proceed to trial in the absence of the defendant.

Fourth, a trial court upon receipt of such “withdrawal of general time waiver” pleading must expeditiously either (a) set the matter for a trial setting conference to protect both parties’ rights to a speedy trial (Cal. Const., art. I, §§ 15, 29; Pen. Code, § 1382), and so that the People do not suffer the drastic sanction of dismissal (Pen. Code, §§ 1382, 1387); or (b) set the matter for trial without an appearance by the parties and provide written notice of the setting to all parties.

Fifth, in response to the vigorous objections voiced by the People at oral argument, the prosecutor’s office should also consider similar internal steps to protect against this situation repeating itself.

Finally, I note that in my reading of the statute, there appears to be no legislative requirement that either the prosecution or the court accept general time waivers. A court should consider the overall legislative objective of general time waivers when deciding whether to set future court proceedings without the setting of a trial date. 
      
      Margines, P. J., Prickett, J., and Moss, J.
     
      
      
        People v. Soukomlane (2008) 162 Cal.App.4th 214, 235-236 [75 Cal.Rptr.3d 496] (conc, opn.).
     
      
       This is not intended to be an exclusive or exhaustive list.
     