Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super. Ct. No. INM189398, Patrick F. Magers and Judith C. Clark, Judges.
Gary Windom, Public Defender, and Ryan E. Hart, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Rod Pacheco, District Attorney, and Kelli M. Catlett, Deputy District Attorney, for Real Party in Interest.
OPINION
GAUT Acting P. J.
In this matter we have reviewed the petition and the opposition thereto which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Where, as here, a defendant is charged with a misdemeanor and is not in custody at the time of his arraignment, Penal Code section 1382, subdivision (a)(3), requires dismissal if the defendant is not brought to trial within 45 days of his arraignment, unless good cause is shown for the delay. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1340.)
All further statutory references are to the Penal Code unless otherwise stated.
The parties do not dispute that the last day on which petitioner could be brought to trial under section 1382, in the absence of good cause, was September 4, 2008. On that date at approximately 4:20 p.m., petitioner’s case was called in Riverside and assigned for trial in Indio. In making this assignment, the judge acknowledged that the parties would not be able to arrive in Indio prior to the close of business. Accordingly, the judge found good cause to continue the matter until the next morning, commenting that petitioner would not be prejudiced by the overnight delay.
The following day, petitioner moved to dismiss on the ground that he had not been brought to trial within the time limit specified in section 1382, subdivision (a)(3). The motion should have been granted.
The eleventh hour assignment of this case for trial was a sham because there was no expectation that trial proceedings would actually commence on September 4. Under these circumstances, the finding of good cause to continue the case to the next day was ineffectual. The fact that this case came to the “last day” at all was due to pervasive court congestion of the type condemned in People v. Johnson (1980) 26 Cal.3d 557.
Finally, a defendant has no obligation to show prejudice when he seeks a statutory speedy-trial dismissal, or on pretrial review of an order denying dismissal. (See People v. Wilson (1963) 60 Cal.2d 139, 149-151.)
DISPOSITION
Let a writ of mandate issue directing the Appellate Division of the Superior Court of Riverside County to vacate its order summarily denying the petition and to enter a new order granting the petition.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: HOLLENHORST J. McKINSTER J.