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Court of Appeal, Second District, Division 6, California.

Stanley Stewart RHINEHART, Petitioner, v. MUNICIPAL COURT OF SANTA BARBARA–GOLETA JUDICIAL DISTRICT, Respondent, The PEOPLE of the State of California, By the DISTRICT ATTORNEY OF SANTA BARBARA COUNTY, Real Party in Interest and Appellant.

Civ. 65336.

Decided: May 12, 1983

Stanley M. Roden, Dist. Atty. of Santa Barbara County, and Gerald McC. Franklin, Deputy Dist. Atty., for real party in interest and appellant. Glen Mowrer, Jr., Public Defender of Santa Barbara County, and Thomas Bleauvelt, Deputy Public Defender, for petitioner. No appearance by respondent.

The People appeal from a judgment of the Superior Court of Santa Barbara County granting a writ of prohibition, prohibiting the Santa Barbara Municipal Court from proceeding with the trial of defendant Stanley Rhinehart for an alleged violation of Vehicle Code section 23102, subdivision (a).

We must determine whether the Municipal Court brought Rhinehart to trial within the meaning of section 1382 of the Penal Code.

Rhinehart was arraigned on June 22, 1981.   He pleaded not guilty on July 13, and the matter was set for jury trial on September 8, 1981.   The matter was continued by Rhinehart to September 22 and then again to November 17.

On the tenth day of the ten-day grace period provided by Penal Code section 1382,1 November 27, 1981, the municipal court judge began the trial, but only for the purpose of selecting a jury.   The judge informed the parties that testimony would not be taken until December 3 or December 4, 1981, because the court was already engaged in the selection of a jury in another criminal case.   The jury was impaneled on November 27, 1981, and the trial was continued over the objection of defense counsel to December 3 or 4, 1981, for the taking of testimony.   On November 27, 1981, the court noted on the docket the following:

“Objection by defendant's counsel as to limiting today's proceedings to selection of a jury and continuing proceedings to 12–3–81 or 12–4–81.   It is noted that above is necessary because of a shortage of a judge at this time.   Judicial Council has been notified of this court's situation.  (No civil trials have been heard during period of trailing jury trials.)   Objection overruled.”

We conclude that Rhinehart was not denied his right to a speedy trial, and was brought to trial within the meaning of Penal Code section 1382.


Rhinehart first contends that he was not brought to trial within the meaning of Penal Code section 1382 because his trial was delayed as a result of court congestion.

In the recent case of Arreola v. Municipal Court (1983) 139 Cal.App.3d 108, 188 Cal.Rptr. 529, the court, relying on People v. Johnson (1980) 26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738, held that court congestion absent exceptional circumstances does not constitute good cause to delay a defendant's trial beyond time limits prescribed by Penal Code section 1382.  Arreola, however, applies to cases in which the trial has not begun within the time limits of section 1382.   Rhinehart argues, however, that impaneling the jury did not constitute the legitimate beginning of his trial because immediately thereafter his case was continued.   We disagree.

In People v. Katzman (1968) 258 Cal.App.2d 777, 66 Cal.Rptr. 319, codefendant Sahati's case was ultimately continued on his motion to March 21, 1966.   On that day and the following day, March 22, 1966, a jury was impaneled.   The judge then continued the remainder of the case over defendant's objection to April 4, 1966, so that he could attend a judge's conference in Santa Barbara.   The appellate court held that defendant was brought to trial within the meaning of Penal Code section 1382 by virtue of the impaneling of the jury because “that event is significant in determining when a defendant has been placed in jeopardy so that an action against him cannot be dismissed without prejudice.”  (Id., at p. 789, 66 Cal.Rptr. 319.)

In Sanchez v. Municipal Court, (1979) 97 Cal.App.3d 806, 159 Cal.Rptr. 91, the court recognized the difficulty in arriving at a precise point at which an individual is said to have been “brought to trial.”   The court reasoned that “the swearing of a panel of prospective jurors and the temporary seating of 12 jurors is a significant indication that a trial is underway.”  (Id., at p. 811, 159 Cal.Rptr. 91.)

Rhinehart's case was well underway before the proceedings were interrupted.   The judge did more than temporarily seat 12 jurors;  he actually completed a significant part of the trial.   The entire voire dire examination of the jury had taken place and a jury was selected and sworn to hear the case.  “It is inconsistent to state that a defendant is in jeopardy when the jury has been impaneled, yet has not been brought to trial for purposes of the speedy trial requirement of section 1382.”  (People v. Katzman, supra, 258 Cal.App.2d at p. 789, 66 Cal.Rptr. 319.)

It was obvious to the judge in the instant case, as it was to the judge in Katzman, that the trial could not proceed without interruption.   Even before calling a jury panel, the judge knew that after the selection of a jury a continuance would be necessary so that he could complete the trial of another criminal matter he had started prior to Rhinehart's case.

Rhinehart thus argues that he was not brought to trial because the judge impaneled the jury only as a device to avoid a dismissal under section 1382.   We find no merit in this argument.

Section 1382 gives us a timetable which serves as a catalyst to move cases through the justice system.   The judge merely responded to the section 1382 deadline by starting and completing a significant part of the trial.   The judge in fact was complying with the mandate of Penal Code section 1050 which provides in part:

“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․  It is therefore recognized that both the people and the defendant have the right to a expeditious disposition, and to that end it shall be the duty of all courts and judicial officers ․ to expedite such proceedings to the greatest degree that is consistent with the ends of justice.”

Penal Code section 1382, which gives statutory expression to the right to a speedy trial contained in Article I, section 15 of the California Constitution, does not guarantee criminal defendants the right to a continuous trial without delay or interruption.   Frequently trials must be interrupted or continued for a variety of reasons, ranging from illness of a witness or juror, to calendaring problems of attorneys and witnesses.

The right to a speedy trial however is not moribund once the trial has begun.  Penal Code section 1050 still gives it vitality, because it provides in part that “[c]ontinuances shall be granted only upon a showing of good cause.”   Good cause depends on the facts and circumstances of each case.   Good cause may exist to continue one case three weeks but not exist to continue another case three days.

 Court congestion does not constitute good cause to delay bringing a defendant to trial within the time limits of section 1382.  (Arreola v. Municipal Court, supra, 139 Cal.App.3d 108, 188 Cal.Rptr. 529.)   Once, however, a significant portion of the trial such as impaneling a jury has been completed, we cannot say as a matter of law that court congestion does not constitute good cause for continuing a case six or seven days under Penal Code section 1050.  “The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider ․ and above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”  (People v. Laursen (1972) 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 504 P.2d 1145.)   Good cause for delaying a criminal trial is within the discretion of the trial court and will not be disturbed on appeal absent the showing of abuse of discretion.  (People v. McFarland (1962) 209 Cal.App.2d 772, 776, 26 Cal.Rptr. 596.)

Judges must have flexibility in managing their calendars.   In this way they are better able to render substantial justice to all parties.   In some cases, such as Arreola, where 38 defendants have reached the outer limits of section 1382, it would be next to impossible to impanel 38 juries without a major disruption of other proceedings.   In other circumstances, the interruption of a trial in progress in order to impanel a jury in a second case with Penal Code 1382 problems may not create any difficulty vis-a-vis Penal Code section 1050 in the first case.   Judges must have the freedom and discretion to resolve these kinds of problems in each individual case.   In some instances, a dismissal may be required.

 In the instant case, however, we find no reason for a dismissal at this time.   Rhinehart, however, is not precluded from raising in the trial court the issue of prejudice, if any, caused by the delay.  (People v. Katzman, supra, 258 Cal.App.2d 777, 66 Cal.Rptr. 319.2

In the instant case, the “shortage of a judge” occurred because of a vacation of a judge who was not due to return until November 30, 1981.   This does not entitle Rhinehart to a dismissal.   His reliance on Lewis v. Superior Court (1981) 122 Cal.App.3d 494, 176 Cal.Rptr. 80, is misplaced.

In Lewis, judges were at an educational program and thus not present to try cases within the time limits of section 1382.   The continuances beyond the section 1382 time limit over the objection of the defendants was improper because the absent judges were just minutes from the courthouse and could have been recalled to try the cases.   The court pointed out that it was not deciding the more difficult question that “might arise because of judicial vacation schedules which conflict with cases pushing the statutory speedy trial limit.”  (Id., at p. 499, fn. 2, 176 Cal.Rptr. 80.)   In the instant case the continuance took place after the trial was underway, and further the absent judge was on vacation and not just minutes away at a conference.

The judgment of the superior court is reversed and the matter is remanded to the trial court for further proceedings.


1.   Penal Code section 1382 provides in pertinent part:“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:“․“3. 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, ․ 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 to trial on the date so set for trial or within 10 days thereafter․”

2.   In Katzman, the court held it was error for the trial judge to continue the case to April 4 because the attending of a judicial conference by the trial judge was not a sufficient excuse under Penal Code section 1050.   On the date of Katzman, 1968, Penal Code section 1050 provided in pertinent part that “[n]o continuance of a criminal trial shall be granted except upon affirmative proof in open court, upon reasonable notice that the ends of justice require a continuance.”   This error, however, did not constitute grounds for reversal because defendant could not show that he was deprived of a fair trial or was prejudiced as a result of the delay.   Katzman involved a post conviction appeal.   That our instant case comes to us by way of a Writ of Prohibition does not affect our ruling.   Only when a defendant seeks pretrial relief arising from the state's delay in bringing him to trial within the meaning of section 1382 is he “not required to affirmatively show that he [has] been prejudiced by the delay.”  (People v. Johnson (1980) 26 Cal.3d 557, 574, 162 Cal.Rptr. 431, 606 P.2d 738, quoting People v. Wilson (1963) 60 Cal.2d 139, 151, 32 Cal.Rptr. 44, 383 P.2d 452.)

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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