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Court of Appeal, Fourth District, Division 1, California.

John Frederick HEATHMAN, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. The PEOPLE, Real Party in Interest.

No. D009131.

Decided: January 31, 1989

Carl Fabian, San Diego, for petitioner. No appearance for respondent. John W. Witt, City Atty., Stuart H. Swett, Sr. Chief Deputy City Atty., and Marilynn J. Winters, Deputy City Atty., for real party in interest.

John Frederick Heathman was involved in a single-vehicle motorcycle accident on August 13, 1985.   He was taken to a hospital and a blood analysis showed his blood alcohol level was .29.   A complaint was filed on October 8, 1985, charging him with violation of Vehicle Code section 23152, subdivisions (a) and (b).   A notify warrant was sent to Heathman at his then-current address advising him to appear for arraignment on November 6, 1985.   Heathman did not appear.   An arrest warrant was issued in January 1986.   In February 1986, Heathman appeared in the El Cajon Municipal Court for a revocation of probation hearing arising from the August 13, 1985 incident.   The court found no violation of probation in that no corpus of the alleged crime could be shown.

On March 1, 1988, Heathman first learned of the arrest warrant when he received and read a printout of his driving record at the request of a prospective employer.   He immediately appeared for arraignment held on March 1, 1988, and entered a plea of not guilty.   He then contended that since more than one year had elapsed from the filing of the complaint to his arraignment, the complaint should be dismissed.   We agree.

 A defendant has a constitutional right to a speedy and public trial.  (Cal.Const., art. I, § 15.)   In a misdemeanor prosecution, that right attaches with the filing of the complaint which here occurred October 8, 1985.   For purposes of speedy trial, a one-year delay between filing charges and arraignment is presumed prejudicial.  (Serna v. Superior Court (1985) 40 Cal.3d 239, 251–252, 219 Cal.Rptr. 420, 707 P.2d 793.)   Here, the People concede there is presumptive prejudice.   In such circumstances, there must be a hearing, at which time the court balances the length and reason for the delay against the defendant's assertion of the right and prejudice to him because of the delay.  (Serna, supra, at p. 252, 219 Cal.Rptr. 420, 707 P.2d 793.)   The trial court found that Heathman knew of the charges but elected “to let sleeping dogs lie.”   Thus, the court concluded the delay was due to Heathman and he could not complain.

We believe this finding was in error.   Assuming Heathman knew of the charges and willfully failed to appear on November 6, 1985, it is not his absenting himself from the hearing that caused the delay.   Rather, the delay was caused because the People did not execute the arrest warrant.   The People seek to justify this omission on the bases that priority is given to felony arrest warrants over nonviolent misdemeanors and that the jails are overcrowded.   This is a policy decision which has been implemented by the People to accommodate the inconvenience and expense of serving all arrest warrants.   However, basic constitutional rights may not be denied because of inconvenience or expense.   The People may not say, on the one hand, that this offense is not sufficiently serious to serve an arrest warrant, yet is sufficiently serious to prosecute after the one-year statute has long run.   The delay in bringing Heathman to trial is not justified.

An alternative writ or order to show cause would add nothing to the presentation.   A peremptory writ is proper.  (Code Civ.Proc., § 1088;  United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359, 169 Cal.Rptr. 827;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Let a peremptory writ issue directing the superior court to vacate its order denying the petition for mandate and to enter a new and different order dismissing the case.   The stay issued by this court on December 13, 1988, is vacated when the remittitur issues.

TODD, Associate Justice.

WORK, Acting P.J., and HUFFMAN, J., concur.

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