OWENS v. PEOPLE

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Court of Appeal, Second District, Division 4, California.

Richard OWENS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Civ. 55688.

Decided: September 13, 1979

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Patrick G. Rogan and John L. Ryan, Deputy Public Defenders, for petitioner. No appearance by respondent. John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Maurice H. Oppenheim, Deputy Dist. Attys., for real party in interest.

This original application for a writ of mandate or prohibition requires us to decide the continued viability of the line of cases holding that the 60-day period prescribed in Penal Code section 1382, subdivision (2), for bringing a case to trial excludes time during which the trial was delayed at the request of the defendant. Despite the novel theory raised by petitioner, we conclude that the authority of the past decisions is unimpaired.

An information filed in the superior court on October 18, 1978, charged petitioner (hereinafter called defendant) with robbery. He pleaded not guilty and the trial was set for November 17, 1978. On that date, on motion of defendant, the trial was reset for January 4, 1979. On that date defendant's attorney reported that he was engaged in another trial, and suggested resetting on January 11. The court continued the trial to January 8 and ordered the witnesses to be available on that date. On January 8 defendant's attorney was still busy. The case trailed until the morning of January 11, when defendant's attorney announced he was ready. The prosecutor said he did not have his witnesses. The case then trailed to Monday, January 15, but the prosecutor still did not know when his witnesses would be available. Defendant's motion to dismiss was denied without prejudice, and the case trailed to January 22.

On January 22 defendant made a motion to dismiss upon the ground that the case had not been tried within 10 days after the date (January 11) on which defendant had announced ready.1

The prosecutor presented the testimony of an investigator who related his efforts to locate the victims of the two robberies, and expressed his expectation that both would be available the following day. The prosecutor also argued that the 60-day period allowed by Penal Code section 1382 had not expired because the delay caused by defendant must be excluded from the computation.

The court then granted the motion of the People to put the case over one more day.

On January 23 the People's witnesses were present and the prosecutor was ready to proceed. The defendant renewed his motion to dismiss. The court said: “Well, yesterday I ruled that the People had shown sufficient grounds for continuing the matter, good cause, for one day to bring in the witnesses and they have brought in the witnesses. Accordingly, the motion will be denied.”

Defendant then requested a continuance in order that he might seek a writ of prohibition in the Court of Appeal. That motion was granted and this proceeding was commenced.

The applicable precedents are People v. Harrison (1960) 182 Cal.App.2d 758, 6 Cal.Rptr. 345; People v. Burch (1961) 196 Cal.App.2d 754, 761, 17 Cal.Rptr. 102; People v. Flores (1968) 262 Cal.App.2d 313, 320, 68 Cal.Rptr. 669; People v. Conway (1969) 271 Cal.App.2d 15, 22, 76 Cal.Rptr. 251. Each of these cases held that in computing the 60-day period allowed by section 1382, delay requested by defendant must be excluded.2 More recently this rule was stated as dictum in Hankla v. Municipal Court (1972) 26 Cal.App.3d 342, 361, 102 Cal.Rptr. 896. None of these cases has been overruled or criticized in any reported decision.3 The basis of the rule was expressed by Justice Tobriner in Burch, supra, 196 Cal.App.2d at page 762, 17 Cal.Rptr. at page 106: “We find somewhat anomalous appellant's argument that a delay to which he contributed, by requesting that the trial not be set during his witness' 30-day absence, defeated his constitutional and statutory right to a speedy trial.”

In the present case both sides were ready on January 23, 1979, which was the 97th day following the filing of the information on October 18, 1978.

The 48-day period from November 17, 1978, to January 4, 1979, was attributable to defendant's request.4

The seven day delay from January 4 to January 11 was also attributable to defendant even though defendant's counsel stated “He (defendant) has indicated to me that he is not willing to waive time.” Defendant was in fact not ready for trial on January 4 because his attorney was legitimately committed in another case. (See Townsend v. Superior Court (1975) 15 Cal.3d 774, 783, 126 Cal.Rptr. 251, 543 P.2d 619.)

Subtracting the 55 days attributable to defendant from the 97 calendar days establishes January 23, 1979, as the 42nd day of the allowable 60 days. Hence the case was not subject to dismissal under section 1382.

Defendant's argument is based upon an interpretation of the 1959 amendment to section 1382. Prior to that amendment the statute required dismissal “If a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within 60 days after the finding of the indictment, or filing of the information . . . .”

A study published in the Seventeenth Biennial Report of the Judicial Council of California (1959) at page 31 pointed out that this section needed clarification. One defect was that it literally excluded from its operation all cases postponed upon a defendant's application. The Council proposed an amendment to section 1382 which was enacted by the 1959 Legislature, effective September 18, 1959. The language which applies to the present case remains as it was then amended. (See fn. 1, Supra.)

The significant change in subdivision 2 was to eliminate the words “whose trial has not been postponed upon his (defendant's) application” in the opening clause, and add the following at the end of the subdivision: “except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.”

The purpose and effect of the 10-day provision was to allow a grace period for bringing the case to trial after the expiration of the time to which the defendant had consented if that time was beyond the 60-day limitation. Prior to the 1959 amendment there was no express statutory limit for a defendant who had requested a postponement, but some decisions had indicated that the defendant was entitled to go to trial on the last date to which he had consented unless good cause for further delay was shown. (See In re Lopez (1952) 39 Cal.2d 118, 120, 245 P.2d 1; People v. Weiss (1958) 50 Cal.2d 535, 559, 327 P.2d 527.) It was to provide a reasonable solution to that problem that the 10-day exception was added. (See Malengo v. Municipal Court (1961) 56 Cal.2d 813, 815, 17 Cal.Rptr. 10, 366 P.2d 453; Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 133, 105 Cal.Rptr. 391.)

Defendant argues that the 1959 amendment means that even though he causes the delay beyond 60 calendar days from the filing of the information, the case must be tried within 10 days after his delay has ceased, unless the People show good cause.

There are two answers to this contention:

First, all four of the cases cited above, which held that the defendant's delay is not counted in the 60-day period, were decided after the 1959 amendment became effective, and none so interpreted the statute.

Second, the 1959 amendment does not purport to affect the manner in which the 60-day period is counted. The ten-day provision, added in 1959, is an exception to the otherwise applicable 60-day limitation. It is an exception which applies after the expiration of the 60 days allowed by the preceding clause.5

In Townsend v. Superior Court, supra, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619, quoted in the dissent, the issue was the application of the 10-day grace period after the expiration of the 60-day period. In that case the defendant's first request for delay came after the 60-day period had expired. Townsend does not decide or discuss how the 60-day period is calculated. The language quoted from Townsend does not relate to a defendant's request for delay before the 60 days have expired.

Nor does People v. Rodriguez (1971) 15 Cal.App.3d 481, 93 Cal.Rptr. 182 have any relevance to the issue here. Rodriguez dealt with the question of good cause, an issue not reached in the present proceeding.

Inasmuch as both sides were ready for trial on January 23, 1979, the 42nd of the 60 days allowed by section 1382, the motion to dismiss was properly denied.

The petition for a writ of prohibition or mandate is denied.

I dissent.

Contrary to the view of the majority, I would grant the petition for writ of mandate and order the dismissal of the action pursuant to the provisions of Penal Code section 1382, subdivision 2.

The majority poses the issue before us as one that requires a decision regarding the continued viability of a line of cases holding that the 60-day period prescribed in Penal Code section 1382, subdivision 2, for bringing a case to trial, excludes the period of time during which the trial was delayed at the request of the defendant.

The majority labels the position of petitioner as posing a “novel” theory and concludes that the authority of the past decisions relied upon by the majority remains unimpaired. In my view the legal theory advanced by petitioner is not a novel theory at all, but, on the contrary, represents a legal position that has substantial merit, and which mandates that petitioner is entitled to a dismissal of the action pursuant to the provisions of Penal Code section 1382, subdivision 2. Furthermore, I conclude that the authority of the past decisions relied upon by the majority is neither controlling nor persuasive under the circumstances presented in the case at bench and, hence, does not present any convincing support for the holding of the majority.

There is no dispute with respect to the facts. The information charging petitioner with robbery was filed in the superior court on October 18, 1978. After several continuances, the case was trailed for trial until the morning of January 11, 1979, when defendant's attorney announced that he was ready to proceed to trial, but the case was then trailed finally to January 22, 1979, because of the prosecutor's statements that his witnesses were unavailable. On January 22, defendant made a motion to dismiss the action upon the ground that, pursuant to the provisions of Penal Code section 1382, subdivision 2, he had not been brought to trial within ten days after the date of January 11, 1979 the last date for trial to which defendant had agreed. The trial court denied defendant's motion to dismiss the action and the case was continued to January 23, 1979, upon the People's motion that the People's witnesses would be available and the People would be ready to proceed.

Petitioner's renewal of his motion to dismiss, made on January 23, 1979, was also denied. The date of January 23, 1979, represented the 97th day following the filing of the information on October 18, 1978.

It is the holding of the majority that, as of January 23, 1979, petitioner was not entitled to a dismissal of the action, even though such date obviously was far in excess of 60 days from the date of October 18, 1978, when the information was filed. The majority points out that continuances of the various trial date settings, attributable to petitioner or consented to by him, amounted to a total of 55 days. The majority concludes that, by subtracting these 55 days from the 97 calendar days elapsing after the filing of the information, establishes January 23, 1979, as only the 42nd day of the allowable 60 days provided by Penal Code section 1382 within which a defendant must be brought to trial.

The majority holds, therefore, that petitioner's trial on January 23, 1979, was clearly within the allowable 60-day period for bringing him to trial and, hence, petitioner was not entitled to any dismissal of the action under Penal Code section 1382.

The majority reaches its result by interpreting Penal Code section 1382 as providing that any time delays in getting to trial that are attributable to defendant must be subtracted from the 60-day calendar period from the filing of the information. The view of the majority is that a defendant's request for a continuance of trial beyond the 60-day calendar period from the filing of the information tolls the 60-day requirement to the extent of the delay period attributable to defendant.

In reaching the result that defendant's request for continuance or his consent to a delay of trial tolls the 60-day trial requirement imposed by Penal Code section 1382, the majority relies upon the cases of People v. Harrison (1960) 182 Cal.App.2d 758, 6 Cal.Rptr. 345; People v. Burch (1961) 196 Cal.App.2d 754, 17 Cal.Rptr. 102; People v. Flores (1968) 262 Cal.App.2d 313, 68 Cal.Rptr. 669; and People v. Conway (1969) 271 Cal.App.2d 15, 76 Cal.Rptr. 251. I recognize that these cases did hold that, in computing the 60-day period provided by Penal Code section 1382 for bringing a case to trial against a criminal defendant, the number of days of delay requested by defendant or consented to by him should be excluded. But I disagree with the majority's conclusion that the rule of law announced in these cases is applicable to the case at bench simply because such rule of law has not been overruled or criticized in any reported decision.

The fact that the rule of law announced in the above cited cases has not been overruled or criticized by other reported decisions is not a good reason to support the majority's position. The rule of law announced in these cases was enunciated in light of the provisions of Penal Code section 1382, subdivision 2, prior to the 1959 amendment to this section. The 1959 amendment to Penal Code section 1382, subdivision 2, added the provision that a criminal action should not be dismissed for not being brought to trial within 60 days after the filing of the information if such action “is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.”

Even though the Harrison, Burch, Flores and Conway cases were decided after the 1959 amendment to Penal Code section 1382, subdivision 2, it is significant that none of these cases discusses the effect of the 1959 amendment or makes an interpretation of the language of the 1959 amendment in spite of the fact that the amendment deals expressly with a defendant's rights to a dismissal when he consents to a trial date beyond the 60-day Calendar period from the filing of the information. Since these cases relied upon by the majority do not discuss or mention at all the effect of the 1959 amendment to Penal Code section 1382, subdivision 2, it is not at all a relevant consideration to the issue posed before us that the rule of law enunciated in these cited cases has not been overruled or criticized in any reported decision.

It is my view that, since an interpretation of the 1959 amendment to Penal Code section 1382, subdivision 2, is squarely presented under the facts of the case at bench, it becomes highly relevant that the rule of law announced in these cases relied upon by the majority be criticized and rejected to the extent that it is suggested that such rule of law has any applicability to the factual situation presented in the case before us.

The majority seeks to justify its holding that the rule of law announced in Harrison, Burch, Flores and Conway has not been abrogated by the 1959 amendment to Penal Code section 1382, subdivision 2, by pointing out that these cases were decided after the 1959 amendment became effective. But since none of these cases discusses the effect of the 1959 amendment or seeks to interpret the language thereof, it is an untenable position to hold that, sub silentio, these cases decided that the 60-day calendar period for bringing a defendant to trial is tolled to the extent of the defendant's requests for delay in spite of the specific language of the 1959 amendment which requires that an action be dismissed if not brought to trial by the trial date Consented to by defendant beyond the 60-day period or within ten days after such extended trial date consented to by defendant.

The language of the 1959 amendment is so plain, unambiguous, specific and clear that it is unreasonable and constitutes a distortion of guiding principles of statutory interpretation to reach the result of the majority that the trial date consented to by defendant which is beyond the 60-day period and which gives the prosecution an extra 10 days from such consented-to date to begin trial is to be interpreted to mean a trial date still further extended by the number of days past the 60-day calendar period from the filing of the information to which defendant has agreed.

In the case before us, I am unable to see any rational basis for the majority's holding that the date of January 11, 1979 a date beyond the 60-day calendar period to which defendant consented for his trial date in Not The date which begins the 10-day extra period for the prosecution to bring defendant to trial. Neither logic, reason, policy nor applicable principles of statutory construction supports the position that the extra 10 days under Penal Code section 1382, subdivision 2, starts at a date far beyond January 11, 1979, and calculated by adding to the 60-day calendar period the number of days beyond such 60-day period to which the defendant consented.

Thus, under the majority's holding, the 60-day period from the filing of the information on October 18, 1978, would not expire until February 11, 1979, a month beyond January 11, 1979, the last trial date consented to by defendant, and the prosecution would have an additional 10 days or until February 21, 1979, to bring defendant to trial.

I consider the language of Penal Code section 1382, subdivision 2, added by the 1959 amendment, to be so clear, plain and unambiguous that it nullifies any theory that defendant's consent to a trial date beyond the 60-day calendar period from the filing of the information gives the prosecution any more than 10 days from the last trial date agreed to by defendant beyond the 60-day period to bring defendant to trial.

The legislative history of Penal Code section 1382, subdivision 2, manifestly supports an interpretation that, when a criminal case is set for trial beyond the initial 60-day period with defendant's consent, the action must be dismissed if not brought to trial within 10 days of the last date consented to, without adding thereto the number of days beyond the 60-day period to which defendant has consented.

The 1959 amendment to Penal Code section 1382, subdivision 2, was recommended in the Seventeenth Biennial Report of the Judicial Council. In this Report, the Judicial Council stated, in relevant part as follows: “It is recommended that the section be amended to provide for dismissal of all cases not brought to trial within the statutory period (unless good cause is shown) except when the defendant has consented to the trial being set beyond the statutory period, and that in the latter situation the case must be dismissed if it is not brought to trial within 10 days after the last date for trial to which the defendant consented. This will clarify the present rule by (a) establishing that dismissal under Section 1382 may be had even though the defendant has previously consented to a delay beyond the statutory period, (b) fixing 10 days as a reasonable time for trial after expiration of the period consented to by the defendant, and (c) eliminating the possibility that delays attributable to a defendant which are wholly within the statutory period may prevent dismissal.” (Seventeenth Biennial Report of the Judicial Council (1959), pp. 30-32.) (Emphasis added.)

This legislative history of the 1959 amendment to Penal Code section 1382, subdivision 2, demonstrates unquestionably that the 60-day period from the filing of the information for bringing a defendant to trial is neither extended nor tolled because the defendant requests, consents to, or acquiesces in, a trial date beyond the 60-day period.

Prior to the 1959 amendment which added the 10-day provision to section 1382, subdivision 2, a defendant who had consented to a trial beyond the 60-day period was entitled to go to trial on the last day of the extension to which he had consented unless, of course, the prosecution made a showing of good cause for further continuance of trial. (See Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 105 Cal.Rptr. 391; Malengo v. Municipal Court (1961) 56 Cal.2d 813, 17 Cal.Rptr. 10, 366 P.2d 453; In re Lopez (1952) 39 Cal.2d 118, 245 P.2d 1.)

In Townsend v. Superior Court (1975) 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619, the California Supreme Court has used language that constitutes a manifest rejection of the majority's interpretation of Penal Code section 1382. Thus, with reference to section 1382, the court observed: “ ‘The statute provides that an action need not be dismissed if it is set for trial beyond the 60-day period with the consent of the defendant and if defendant is brought to trial within 10 days thereafter. The word ”thereafter“ refers back to the date the case was set with the defendant's consent.’ ” (Id. at p. 783, 126 Cal.Rptr. at p. 258, 543 P.2d at p. 626.) (Emphasis added.)

In the case before us, there is no reasonable way that the majority's interpretation of Penal Code section 1382 can be squared with the language used by the Townsend Court. The quoted language of the Townsend case does not lend itself to the majority's interpretation of section 1382 that the 60-day period provided for therein is exclusive of all trial-continuance days requested by or consented to by defendant, and that it is only after there is reached a sixtieth day after such exclusions plus an additional ten days that a defendant would be entitled to a dismissal of the action.

It is to be noted that the Townsend Court emphasized that the word “thereafter,” found in Penal Code section 1382, subdivision 2, “ ‘refers back to the date the case was set with the defendant's consent.’ ” (Townsend, supra, 15 Cal.3d 774, 783, 126 Cal.Rptr. 251, 258, 543 P.2d 619, 626.) The majority's interpretation would require adding to this language of Townsend Additional language such as “plus the number of days of trial continuances to which defendant has consented.” The language of Townsend Is not susceptible of an interpretation which would authorize any such additional language.

The majority seeks to distinguish Townsend By asserting that, in Townsend, as contrasted with the case before us, the defendant's first request for delay came after the 60-day period had expired. I do not agree with the majority's assessment of the facts in Townsend. In Townsend, the information was filed on August 16, 1974. On August 29, the defendant entered a plea of not guilty and, “with counsel's consent, the court set a trial date of October 25.” (Townsend, supra, 15 Cal.3d 774, 778, 126 Cal.Rptr. 251, 254, 543 P.2d 619, 622.) It is clear, therefore, that, within the 60-day period, to wit, on August 29, defense counsel agreed to a trial date of October 25, which is 9 days beyond the 60-day period from August 16.

The Townsend Court then points out that defense counsel agreed to further trial delay dates of October 28, November 7, November 12, November 15, and November 18. On this latter date both prosecution and defense counsel announced that they were ready for trial. On November 18, over defense counsel's objection, the trial court continued the trial to November 25, which was within 10 days of November 18.

With respect to the importance of the procedural history of the case, the Townsend court observed: “By counsel's failure to object, and in some instances by his affirmative requests for delay, petitioner has effectively consented to every postponement up to and including November 18. When, through counsel, he objected on that day to any further continuance, the critical 10-day period commenced. (Citation.) The trial was set within a 10-day period thereafter.” (Townsend, supra, 15 Cal.3d 774, 783, 126 Cal.Rptr. 251, 258, 543 P.2d 619, 626.) The Townsend Court summarized its holding by stating: “In the matter before us we have concluded, as we develop below, that the requested relief (a dismissal of the action) must be denied since trial herein was finally set to commence within the 10-day period contemplated by (section) 1382, subdivision 2.” (Id. at p. 777, 126 Cal.Rptr. at p. 254, 543 P.2d at p. 622.)

Townsend, therefore, is a case in which the defendant there made requests for trial delays both during and after the 60-day period from the filing of the information.

Finally, the interpretation of Penal Code section 1382, subdivision 2, made by the majority, renders the statute, as so interpreted, nugatory as a violation of defendant's constitutional right to a speedy trial. A defendant's right to a speedy trial constitutes a fundamental right set forth in the Sixth Amendment to the United States Constitution, and is made applicable to the states by the Fourteenth Amendment. (Klopfer v. North Carolina (1966) 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.) A defendant's right to a speedy trial is guaranteed independently by the California Constitution, which provides in article I, section 15: “The defendant in a criminal cause has the right to a speedy public trial, . . .” The California Legislature has implemented this constitutional provision by making the right to a “speedy and public trial” a legislatively guaranteed fundamental right. (Pen.Code, s 686, subd. 1.)

The public policy which undergirds the right to a speedy trial is set forth in Penal Code section 1050 in the following language: “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time . . . , to that end it shall be the duty of all courts and judicial officers and of all counsel, both the prosecution and the defense, to expedite such proceedings to the greatest degree that is consistent with the ends of justice.”

In Sykes v. Superior Court (1973) 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 789-790, 507 P.2d 90, 93-94, the court makes clear that “(s)tatutory rights notwithstanding, the provision of our Constitution which guarantees a criminal defendant a speedy trial is self-executing and not dependent on statutory implementation. . . . ” The Skyes court also points out that Penal Code section 1382 “constitutes a legislative endorsement of dismissal as a proper judicial sanction for violation of the constitutional guarantee of a speedy trial . . . .” (Sykes, supra, 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 790, 507 P.2d 90, 94.)

I can find no justification for the Weakening of a defendant's constitutional right to a speedy trial as enunciated in Townsend and Sykes that results from the majority's interpretation of Penal Code section 1382, subdivision 2. The importance of the fundamental constitutional right to a speedy trial possessed by a criminal defendant requires that the majority's interpretation of Penal Code section 1382 subdivision 2, be rejected.

It is also of substantial significance that this case was argued to the trial court upon an acceptance by the trial judge and the parties of my interpretation of the statute that the 10-day period set forth in Penal Code section 1382, subdivision 2, commenced to run on January 11, 1979. On January 22, 1979, the tenth day after the last trial delay consented to by petitioner, the prosecution sought to make a showing of “good cause” for a further continuance.1 The trial court denied petitioner's motion to dismiss the action, made on January 23, 1979 not on any theory that the 60-day period from the filing of the information plus an additional 10-day period had expired on January 22, 1979 but on the ground that the prosecution had made a showing of “good cause” for further continuance. The record below establishes that the prosecution had Not made a showing of good cause for further continuance of trial and, under these circumstances, dismissal of the action was mandatory under Penal Code section 1382, subdivision 2. (See Sykes v. Superior Court, supra, 9 Cal.3d 83, 88, 106 Cal.Rptr. 786, 507 P.2d 90; People v. Rodriguez (1971) 15 Cal.App.3d 481, 93 Cal.Rptr. 182.)2

I would grant the petition for writ of mandate and order dismissal of the action.

FOOTNOTES

1.  Penal Code section 1382 provides:“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:“. . .“2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information . . .; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.”

2.  Other opinions referring to this principle are People v. Addison (1967) 256 Cal.App.2d 18, 24, fn. 3, 63 Cal.Rptr. 626; Dulsky v. Municipal Court (1966) 242 Cal.App.2d 288, 292, 51 Cal.Rptr. 381.

3.  But see People v. Superior Court (Lerma) (1975) 48 Cal.App.3d 1003, 122 Cal.Rptr. 267 where the appellate court computed the 60-day period without excluding the delay requested by defendant. The order of dismissal was overturned upon the ground that the illness of defendant's counsel was “good cause” for postponing the trial beyond 60 calendar days from the filing of the information. The opinion does not mention any of the cases cited above or the legal ground upon which they were decided.

4.  Contrary to the implication of the dissenting opinion, we recognize a distinction between delay requested by the defendant and delay consented to by the defendant. All of the delay relied upon here to toll the 60-day period was expressly requested by the defendant.

5.  Since the amendment, as before, dismissal is not required if delay beyond the statutory limit is justified by a showing of “good cause.” (People v. Yniquez (1974) 42 Cal.App.3d Supp. 13, 116 Cal.Rptr. 626.)

1.  The three subdivisions of Penal Code section 1382 are preceded by the language, “(t)he court, unless Good cause to the contrary is shown, must order the action to be dismissed in the following cases: . . . ” (Emphasis added.)

2.  Although the majority states that Rodriguez has no relevance here, apparently the California Supreme Court considers that it does. When this court initially denied petitioner Richard Owens' petition on March 20, 1979, the Supreme Court granted a hearing and retransferred the matter to us the Court of Appeal, Second District, Division IV by an order of April 19, 1979, which contained this language: “(W)ith directions to issue an alternative writ of mandamus to be heard before that court when the proceeding is ordered on calendar. (See Penal Code, section 1382 and People v. Rodriguez (1971) 15 Cal.App.3d 481, (93 Cal.Rptr. 182.))”

FILES, Presiding Justice.

ALARCON, J., concurs.

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