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Court of Appeal, Second District, Division 7, California.

Roberto VALADEZ, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. The PEOPLE of the State of California, Real Party in Interest.

No. B021861.

Decided: August 13, 1986

Wilbur F. Little field, Los Angeles County Public Defender, and John Hamilton Scott, Los Angeles County Deputy Public Defender, for petitioner. Ira Reiner, Los Angeles County District Attorney, and Daniel L. Bershin, Los Angeles County Deputy District Attorney, for the people of the State of California.

No appearance for Superior Court.


Petitioner, a defendant in a misdemeanor prosecution pending in the municipal court, sought dismissal in that court on grounds he was not brought to trial within 30 days after he was arraigned as required by Penal Code section 1382, subdivision 3.   When the court denied his motion to dismiss, he sought a writ of mandate or prohibition in the superior court to compel the municipal court to grant the motion.   When the superior court denied his petition, he sought further review in this court by petition for writ of mandate pursuant to Code of Civil Procedure section 904.1, subdivision (a).   We have heretofore notified the parties of our intention to issue a peremptory writ of mandate in the first instance.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.)

 Although in most contexts a petition for writ of mandate is a proceeding in which evidence may be taken and disputed factual allegations resolved by a judge or jury in appropriate circumstances (Code Civ.Proc., § 1090), the sole purpose of a petition filed in an appellate court pursuant to Code of Civil Procedure section 904.1, subdivision (a), is to afford appellate review of a superior court action granting or denying a petition for writ of mandate related to a pending municipal court action.1  Because the question to be decided is whether the superior court abused its discretion or exceeded its jurisdiction in granting or denying the petition filed in that court, the review authorized by section 904.1 is limited to the record made in the superior court.  (Serna v. Superior Court (1985) 40 Cal.3d 239, 245–246, 219 Cal.Rptr. 420, 707 P.2d 793.)

 We have reviewed the record made in the superior court and conclude petitioner is entitled to relief.   Petitioner was arraigned in the municipal court while in custody on April 18, 1986.   Inasmuch as May 18 fell on a Sunday, he was entitled to be brought to trial on or before May 19.   (Pen.Code, § 1382, subd. 3.)   At 3:05 p.m. on May 19, the matter having been continued several times over petitioner's objection, the case was transferred for trial before Judge Robert Furey.   Petitioner promptly filed an affidavit of prejudice against Judge Furey.  (Code Civ.Proc., § 170.6.)   At approximately 3:30 p.m. the case was returned to the presiding judge and petitioner's counsel announced the matter remained ready for trial.   The court thereupon trailed the case for trial at 9 a.m. on May 20.

On May 20 petitioner moved to dismiss the complaint pursuant to subdivision 3 of Penal Code section 1382.   In support of his motion petitioner submitted his attorney's affidavit declaring counsel had personal knowledge that several courtrooms had been available to accept petitioner's case for trial the previous afternoon.   At the hearing on the motion to dismiss, petitioner's counsel orally restated the information contained in his affidavit.   The court denied the motion, stating, “ ․ based upon that information, the information that you have, I am denying the motion at this time.”

 On the basis of the foregoing facts, we are compelled to grant relief to petitioner.   While unforeseen circumstances may constitute good cause to delay a criminal trial beyond the statutory limits, it is incumbent upon the court to do all it can to protect a defendant's speedy trial rights.  (Gomez v. Municipal Court (1985) 169 Cal.App.3d 425, 434, fn. 10, 215 Cal.Rptr. 206;  Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 783, 200 Cal.Rptr. 916, 677 P.2d 1206.)   Here, by failing to make any effort to find another court on May 19 the court violated petitioner's speedy trial rights.2

Let a peremptory writ of mandate issue directing the respondent superior court to vacate its order denying the petition for writ of prohibition or mandate and to issue a new and different order directing issuance of a writ of prohibition as prayed.

The stay of proceedings issued herein July 25, 1986 is vacated.



1.   Code of Civil Procedure section 904.1 provides in relevant part:  “An appeal may be taken from a superior court in the following cases:  [Para.] (a) From a judgment, except ․ (4) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court ․ which relates to a matter pending in the municipal ․ court.   However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition upon petition for an extraordinary writ.”

2.   The superior court incorrectly relied upon People v. Reed (1982) 133 Cal.App.3d Supp. 7, 184 Cal.Rptr. 606 as a basis for denying the petition filed there.   In Reed, as here, the defendant filed an affidavit of prejudice under Code of Civil Procedure section 170.6 in the afternoon of his last day to be tried.   Unlike the situation in the instant case however, in Reed the appellate court expressly found that the trial court did all it could to find a “home” for the case once the affidavit was filed.  (Id., at pp. 10–11, 184 Cal.Rptr. 606.)


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