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Court of Appeal, Second District, Division 3, California.

James GROCE, et al., Petitioners, v. MUNICIPAL COURT OF the COUNTY OF VENTURA, State of California, Respondent, PEOPLE of the State of California by their Attorney, Michael D. Bradbury, District Attorney of Ventura County, Real Party in Interest.

Civ. 62388.

Decided: September 22, 1981

Richard E. Erwin, Public Defender, and Bryant A. Villagran, Deputy Public Defender, for petitioners Groce, Nickols, Comisar, Benegas, Peters, Gurney, Amoguis, Rudell and Alfaro. James M. McNally and Robert I. Schwartz, Ventura, for petitioners Raupp and Mullen. Dorothy L. Schechter, County Counsel, and Dennis L. Slivinski, Asst. County Counsel, for respondent Court. Michael D. Bradbury, Dist. Atty., and Michael D. Schwartz, Deputy Dist. Atty., for real party in interest.

Eleven defendants in 13 actions, charging them with the commission of various misdemeanors, have petitioned this court for a writ of mandate which would compel respondent Municipal Court of Ventura County to grant their respective motions to dismiss these actions against them pursuant to Penal Code section 1382, subdivision (3), for lack of the requisite speedy trial of these actions.1 After a hearing thereon respondent court denied these motions and thereafter the Ventura County Superior Court, again after a hearing, denied these defendants extraordinary relief in this matter. Then they petitioned this court for such relief and we issued the alternative writ of mandate before us.

The sole issue in this writ proceeding is whether the congested condition of respondent court's calendar constituted good cause under section 1382 for delaying the commencement of the jury trials of these defendants beyond the time limits imposed by the subdivision.

We initially note that the interpretation of the good cause requirement of section 1382 contained in People v. Johnson, supra, 26 Cal.3d at pp. 562, 569, 575, fn. 9, 162 Cal.Rptr. 431, 606 P.2d 738 applies expressly only to incarcerated defendants, and our defendants are not incarcerated defendants. Nevertheless, it seems to us that the rationale enunciated in Johnson with respect to the good cause requirement applies to these defendants, accused only of misdemeanors, as well. We therefore intend to grant the peremptory writ of mandate they seek for reasons that follow.


At all times pertinent hereto the complete complement of respondent court consisted of 10 judges. One of these, however, has been absent from the bench by reason of illness since approximately February 1, 1981. A second one, who had been hearing criminal jury trials, was not available on April 20, 1981, the last day for trial under the aforementioned section 1382, subdivision (3), for all of these actions, due to his having been promoted to the superior court. Of the remaining 8 judges, 3 were hearing criminal jury trials full time, one was dividing his time between the hearing of such trials and the hearing of criminal arraignments, one was hearing traffic arraignments and other traffic matters, one was hearing felony preliminary examinations, one was handling the master criminal jury calendar, and one until April 9, 1981 heard criminal and traffic arraignments and criminal court trials the first three days of the week at one location and heard civil court trials and other civil matters the remaining two days at another location. After April 9, 1981 this civil division heard only criminal matters except for the first half-hour of each court day. Finally, during the five-day court week, 4 of the judges heard small claims matters between 8:30 and 9:00 each morning and another until April 9, 1981 at 2:30 p.m. did so on three days a week.

Between March 26, 1981 (the earliest date on which any of these defendants appeared and announced ready for trial) and the aforementioned deadline of April 20, 1981, at least 4 of the judges handled a variety of civil matters. These matters, however, consumed generally only a few minutes apiece and were taken care of during recesses and other breaks in their criminal work. In fact, respondent court did not hear any civil jury trials during 1981 prior to April 20. On the other hand, during the first five months of 1981 it heard 146 criminal jury trials as compared to 138 for the entire preceding year. Despite continuous appeals to the Judicial Council, it was not able, though, to obtain judges from other courts until April 20, 1981. From the end of January 1981 on, it normally had some 70 criminal jury trials trailing, but the number of such cases rose to an unprecedented 102 on April 20, 1981.2


Article I, section 15 of the California Constitution states that the defendant in a criminal case has the right to a speedy public trial. Penal Code section 686, subdivision (1), repeats this language. Penal Code section 1050 says:

“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.... (I)t 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 accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings.” (Emphasis supplied.)

As already noted, Penal Code section 1382, subdivision (3), requires a court, “unless good cause to the contrary is shown,” to dismiss a misdemeanor prosecution unless it is brought to trial within either 30 or 45 days of the defendant's arraignment, depending on whether the defendant was in custody at the time of arraignment.3 People v. Johnson, supra, 26 Cal.3d at p. 570, 162 Cal.Rptr. 431, 606 P.2d 738 states that what constitutes good cause for the delay of a criminal trial is something that lies within the discretion of the trial court, but that delay caused by improper court administration is not good cause. As also pointed out in Johnson, at p. 571, 162 Cal.Rptr. 431, 606 P.2d 738 at the start of this century in the case of In re Begerow (1901) 133 Cal. 349, 355, 65 P. 828 our Supreme Court stated that the purposes of the constitutional guarantee of a defendant's right to a speedy trial encompassed the protection of a defendant from the neglect of the state or its officers. Johnson added that such officers include the judiciary and such neglect may include the failure to provide sufficient courtrooms or judges to implement adequately the constitutional right to a speedy trial. Johnson also noted that the American Bar Association Standards relating to a speedy trial, as approved in 1968, did not excuse delay arising out of the chronic congestion of the trial docket unless that delay was attributable to exceptional circumstances, as when certain unique and non-recurring events produced an inordinate number of cases for court disposition. (Johnson at p. 571, 162 Cal.Rptr. 431, 606 P.2d 738.)4

There is no doubt that between March 26, 1981 and the deadline of April 20, 1981, respondent court accumulated an unprecedentedly large number of trailing criminal jury trials. But it has made no showing that this unusual situation was due to exceptional circumstances that is, to unique and non-recurring events such as the Watts riots of a few years ago. Respondent court's reservation of one courtroom and one judge for two days per week until April 9, 1981 for exclusively civil matters constituted an inexcusable violation of the policy stated in Penal Code section 1050, which we have quoted and emphasized namely, that criminal trials must be given precedence in both their settings and hearings over any civil matters or proceedings. (See Dearth v. Superior Court (1940) 40 Cal.App.2d 56, 58-59, 104 P.2d 376; People v. Echols (1954) 125 Cal.App.2d 810, 814-815, 271 P.2d 505; People v. Yniquez (1974) 42 Cal.App.3d Supp. 13, 19, 116 Cal.Rptr. 626.) This is the point this Division tried to make last year in Perez v. Superior Court (1980) 111 Cal.App.3d 994, 1000, 169 Cal.Rptr. 45 but evidently the trial courts of Ventura County have construed Perez quite literally as requiring merely that such precedence occur only upon the deadline date. We believe that section 1050 requires more. All criminal jury cases trailing for trial must be given precedence in hearing over all civil matters which would otherwise occupy the time necessary for such criminal jury trials.5

We realize that we are using 20-20 hindsight, which was not available to respondent court and that respondent court did make a valiant, resourceful and determined effort which reached its crescendo on April 9, 1981 and thereafter, to comply with the mandate of section 1050. Furthermore, it seems to us, perhaps mistakenly, that Johnson made the speedy trial requirement much stricter than it had heretofore been in this state and we further realize that in this case we are extending the requirements of Johnson beyond those defendants to which it expressly applies. But we think that the rationale of Johnson applies as much to the defendants charged with misdemeanors, who are before us, as it does to those defendants charged with felonies who were involved in both Johnson and Perez. We can see no reason to draw a line between these two classes of defendants with respect to judicial compliance with the statutory implementation of the constitutional rights of these defendants to a speedy trial.6


Let a peremptory writ of mandate issue directing respondent court to grant the motions to dismiss of these defendants now pending before it.


1.  Petitioners are: James Groce, Ollie Nickols, Arthur Comisar, Vincent Benegas, Lila Peters, George Bryce Gurney, Manuel Amoguis, Ronald Wayne Rudell, Ruben Alfaro, Robert Lewis Raupp and Sherry Marlene Mullen.The crimes they are charged with include driving under the influence, child beating, theft, battery and receiving stolen property.The seeking of extraordinary relief for claimed violation of Penal Code section 1382 is not only proper but is the preferred procedure. (See Townsend v. Superior Court (1975) 15 Cal.3d 774, 779, 126 Cal.Rptr. 251, 543 P.2d 619; People v. Johnson (1980) 26 Cal.3d 557, 573, fn. 18, 162 Cal.Rptr. 431, 606 P.2d 738.)Section 1382, subdivision (3), provides in pertinent part that the court, unless good cause to the contrary is shown, must order the action to be dismissed when the defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after his arraignment, if he is in custody at the time of his arraignment, or in all other cases within 45 days after his arraignment.If these actions are dismissed, they may not be reprosecuted. (See Pen. Code, s 1387.)

2.  The permissible trailing periods for the 13 cases before us were: one 25 days, one 20 days, three 19 days, two 18 days, one 17 days, one 11 days, two 10 days, one 7 days and one 5 days.

3.  The burden of proving good cause rests on the prosecution. (See People v. Morino (1890) 85 Cal. 515, 517, 24 P. 842; People v. Tahtinen (1958) 50 Cal.2d 127, 132, 323 P.2d 442.)

4.  These Standards, as approved by the ABA House of Delegates on April 9, 1978, contain the same distinction between chronic congestion of the trial court and that due to exceptional circumstances and the same rationale for this distinction as well. (Standards, pp. 28-29.)

5.  We do not regard the one-half hour at the start of each morning session of four divisions of respondent court, devoted to small claims matters, as consuming time which could otherwise have been used for criminal jury trials and, perhaps, the corresponding one-half hour devoted to civil matters in the civil division may be similarly justified. On the record before us, we do not know whether the 2:30 p.m. former setting of small claims matters in one division deprived that division of time that might have been otherwise expended in the hearing of criminal jury trials.

6.  Trial courts in California have two basic functions: (1) to enforce the criminal law; (2) to resolve civil controversies. In Ventura County it would appear that in both the superior and municipal courts the performance of the first function has practically wiped out the performance of the second. This should not be and the county's board of supervisors would be well advised to meet with the county's district attorney, public defender and the county's legislators to see what can be done to remedy this extremely unfortunate situation.

COBEY, Acting Presiding Justice.

POTTER and LUI, JJ., concur.

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