
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 15120.
    June 29, 1977.]
    THE PEOPLE, Plaintiff and Appellant, v. C. F. BRAUN & COMPANY et al., Defendants and Respondents.
    
      Counsel
    John K. Van de Kamp, District Attorney, Donald J. Kaplan and Richard W. Gerry, Deputy District Attorneys, for Plaintiff and Appellant.
    Miller, Glassman & Browning, Jerome M. Jackson, Manatt, Phelps & Rothenberg and Brian J. O’Neill for Defendants and Respondents.
   Opinion

THE COURT.

The People appeal from an order dismissing a complaint. The order was based on the ground that respondents’ rights to a speedy trial under Penal Code section 1382 (hereafter section 1382) had been violated.

The pertinent facts establish that on August 12, 1976, the Supreme Court denied a petition filed by respondents and seeking to prevent their trial in the municipal court. We recite the facts as they are set forth in respondent’s brief: “After learning that the Supreme Court had denied its Petition for Hearing, Respondent Braun again asserted its right to a speedy trial. On August 18, counsel for Respondent Braun telephoned the District Attorney’s office in order to inquire as to when trial would commence. When a secretary in the office of Deputy District Attorney Warner, the deputy assigned to prosecute the case, advised that Mr. Warner was then serving jury duty, counsel left a message requesting Mr. Warner to return the call. Thereafter, counsel for Respondent Braun contacted the Clerk’s Office in the Inglewood Municipal Court in order to ‘remind people of the existence of the proceeding.’

“On September 20, 1976, more than 30 days after the Supreme Court had denied Respondents’ Petitions for Hearing on August 12, Appellant filed a ‘Notice of Demand for Trial’ in which Appellant stated that ‘[t]he People are and have always been ready to proceed on the trial in the above-entitled case, since the date of August 12, 1976.’

“On September 23, both Respondents moved for dismissal pursuant to Penal Code Section 1382(3) on the ground that they had not been brought to trial within 30 days after the Supreme Court’s denial of their Petitions for Hearing on August 12. Appellant opposed Respondents’ motion to dismiss by contending that under Section 1382(3), Respondents could be brought to trial within 45 days of the Supreme Court’s denial of their petitions. The trial court invited all parties to conduct further research and to submit additional memoranda on the issue. Accordingly, the matter was continued until September 28 upon stipulation that none of the Respondents’ rights under Section 1382 were ‘jeopardized or disturbed or vitiated’ by said continuance.

“On September 28, the court granted Respondents’ motion to dismiss. The court reasoned that although Section 1382(3) does not specifically mandate a period of time within which a defendant must be tried following a denial of his Petition for Hearing, a Petition for Hearing is the substantive equivalent of a direct appeal. And since Section 1382 imposed a 30-day limit for trial after determination of direct appeal, the court ruled that ‘common sense’ dictated that a 30-day rule was also applicable herein. The court also found that ‘the legislative history of the statute shows that the legislature intended a 30-day rule to apply.’ ”

We disagree with the ruling below. We hold that while section 1382 is the applicable statute, the time within which a matter must be brought to trial in the municipal court, absent waiver or good cause for some longer period, is 45 days when the defendant is not in custody.

Subdivision 3 of section 1382 reads as follows: “Regardless of when the complaint is filed, when a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he is arraigned if he is in custody at the time of arraignment, or in all other cases, within 45 days after his arraignment, or in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the inferior court, within 30 days after such mistrial has been declared, after entry of the order granting the new trial, or after the remittitur is filed in the trial court or, if the new trial is to be held in the superior court, within 30 days after the judgment on appeal becomes final; except that an action shall not 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^ 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.”

While the foregoing language does not expressly cover the situation at bar—bringing a case to trial after denial of a petition for an extraordinary writ—it is still pertinent. In Sykes v. Superior Court (1973) 9 Cal.3d 83 [106 Cal.Rptr. 786, 507 P.2d 90], a defendant in a felony case was not brought to trial within 60 days after having secured a writ directing that he be rearraigned for plea. The Supreme Court held that the self-executing Constitutional right to a speedy trial was applicable and that section 1382 amounted to a legislative endorsement of dismissal as a proper judicial sanction and to a legislative determination that a trial delayed more than 60 days was a prima facie violation of a defendant’s right to a speedy trial. (9 Cal.3d at p. 89.) It concluded, “We are accordingly compelled to give a meaning to our constitutional provision which is consistent with equal protection requirements and we have reached an interpretation which gives the same protection to all persons who have established the right to retrial following faulty conviction, even though that protection is not expressly provided by statute.” (Id., at p. 93.)

In Mathews v. Superior Court (1973) 35 Cal.App.3d 589 [110 Cal.Rptr. 483] the court expressly applied the rationale of Sykes to a defendant whose trial had been stayed pending consideration of his petition for a writ of prohibition. The court held that upon denial of such a petition, the defendants (charged with felonies) had to be brought to trial within 60 days.

We thus have no hesitancy in similarly holding with respect to defendants charged with misdemeanors who are not in custody. The rationale of Sykes applies, and we look to section 1382 to determine the applicable time limits. At this point the problem becomes a bit more complex since, for misdemeanors, a 30-day period is applied in some situations and a 45-day period in others. If the former period is applicable we must affirm; if it is not, reversal is called for.

The principles which underlie section 1382 are summarized in People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 1006-1007 [122 Cal.Rptr. 267], as follows: “The right to a speedy trial is a fundamental right secured by the Sixth Amendment to the federal Constitution and is made applicable to the states by the Fourteenth Amendment. Article I, section 13 of the California Constitution independently guarantees the right to a speedy trial. Section 1382, subdivision 2, Penal Code, implements the foregoing constitutional guarantees; and a dismissal is mandated in those situations covered by the statute if at the time a defendant moves therein the 60-day period has elapsed and good cause for delay is not shown by the prosecution.”

In attempting to determine whether the Legislature would have applied a 30- or 45-day limit in the situation before us, there has been uncovered no illuminating material, either by way of legislative history, legislative analysis, or discussion in cases.

One case exists in which the court applied the provisions of section 1382 subdivision 3 to a situation not specifically provided for therein, and used the 45-day limitation. In Simpson v. Municipal Court (1975) 45 Cal.App.3d 112 [119 Cal.Rptr. 184], the defendant’s motion for change of venue was granted. In reviewing the denial of his motion to dismiss for speedy-trial violation, the Court of Appeal held that a new 45-day period begins to run, where defendant is not in custody, after he is transferred to the new forum. The problem with using this case to draw any kind of analogy to the present situation, is that the granting of a motion for change of venue requires that defendant be arraigned in the new forum. Since section 1382 requires that defendant be tried within 45 days after arraignment, the Simpson case more clearly falls within the 45-day provision than does the case at bar.

Appellant makes a rather convincing argument that we can conclude from the language of the statute that the Legislature wanted to limit the time within which a defendant must be brought to trial to 30 days, only in those situations where the defendant has already been tried once. The three events covered in the section are: (1) a new trial following a mistrial; (2) a new trial following reversal on appeal; and (3) a new trial following the granting of a motion therefor. Appellant argues that the Legislature was concerned that a defendant, who has already been subjected to the expense and psychological trauma of a trial, should be delayed no longer than is absolutely necessary before his second trial begins.

In support of this position, one could also point out that there is no need to give either the People or the defendant 45 days to prepare for a second trial; there is no need for additional time to prepare a defense or to gather witnesses. All of that has been done before.

In the instant case, however, following denial of a writ, there has been no trial, and the parties are confronted for the first time with the certainty that there will be one. It seems fair to the People, if not the defendant, to grant the longer time period for preparation, and since defendant is not in custody, he is harmed little, if at all, by the additional 15-day delay.

The application of the 45-day rule in the Simpson case, supra, (although that case is distinguishable) is in keeping with this line of reasoning, since the defendant there had not yet been tried.

Respondent argues that the 45-day period is limited in the statute to apply only after arraignment, and that all other situations must come within the 30-day rule. Such a narrow reading of the statute is not compelled by any mandatory language contained therein.

Since defendants are not in custody and the case has not yet been brought to trial at all, and since defendants situated in exactly the same circumstances who have not petitioned for writs need be brought to trial only within 45 days of their arraignments, we hold that the 45-day period was applicable here, and that the trial was set within the prescribed

The order of dismissal is reversed. 
      
      Before Cole, P. J., Alarcon, J., and Wenke, J.
     
      
       Our reasoning hereafter set forth would lead to the conclusion that if a defendant is in custody, a 30-day period would apply.
     
      
      Appellant has argued that if this court were to hold that the time period to bring a matter to trial after final action on a defendant’s pretrial petition for interlocutory review is 30 days, good cause was shown for a delay beyond 30 days because the specially assigned prosecutor did not have time to prepare this complex matter since he had been called to serve as a trial juror. We are referred to People v. Kessel (1976) 61 Cal.App.3d 322, 325 [132 Cal.Rptr. 126] in support of this argument. We do not reach this question for the following reasons:
      1. We have here held that under these circumstances the time within which to bring this matter to trial is 45 days, therefore, this issue, had it been properly raised below, has become moot.
      2. No such motion was made below, nor was any evidence presented in support thereof.
     