MALENGO v. People of the State of California, Respondent Real Party In Interest.* (1961)

By complaint filed in the respondent court, petitioner was charged with a misdemeanor, a violation of section 11721 of Health and Safety Code. He here seeks a writ of prohibition to restrain respondent court from proceeding with the trial of that action. He bases his right to the writ on the contention that he had been denied a speedy trial in violation of article 1, section 13, of the Constitution of this state in that he has not been brought to trial within the time fixed by the statutes of this state.

Petitioner was arrested and arraigned on September 23, 1960. On that date without the benefit of counsel he entered a plea of not guilty and waived a jury trial. The trial was set for October 21st.

Thereafter he retained counsel and at the request of his counsel the trial of the action was continued to November 18th. On that date the People without prior notice moved for a continuance on the ground that necessary witnesses on the part of the People were in the federal court and could not be present. No objection was made by petitioner to the continuance and he thus impliedly consented thereto. The court continued the trial to January 6, 1961. On that date petitioner appeared with his counsel and announced he was ready for trial. The district attorney without prior notice moved for a one-week's continuance upon the ground that necessary witnesses on behalf of the People were engaged as witnesses in a trial in the federal court and could not appear. The district attorney did not support his motion by affidavit or other evidence or make any showing that the witnesses had been subpoenaed to appear in the municipal court or that any diligence had been used to secure their attendance. At the request of the judge of the respondent court the district attorney made inquiry by telephone to ascertain if the witnesses would be released by the federal court. The clerk of the municipal court was advised over the telephone by one of the witnesses and advised the court that the witnesses would not be released from attendance on the federal trial. Counsel for petitioner objected to any continuance of the trial. The court granted the motion for continuance and asked counsel for a convenient date and February 3, 1961, was agreed upon.

We have concluded that petitioner is entitled to the writ prayed for.

Petitioner was entitled to be tried on January 6th, the date to which the trial had been continued upon the motion of the People with his implied consent, unless good cause was shown by the People in the manner required by law for a continuance beyond that date.

Penal Code, § 1382, as amended in 1959, so far as pertinent, reads as follows: ‘The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: * * * 3. When a defendant in a misdemeanor case in an inferior court is not brought to trial within 30 days after he is arrested and brought within the jurisdiction of the court * * *; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 30-day period at the request of the defendant or with his consent, express or implied, * * * and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.’ (Emphasis added.)

Section 1050 of the Penal Code, as amended in 1959, so far as pertinent here reads as follows: ‘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, and it shall be the duty of all courts and judicial officers and of all prosecuting attorneys to expedite such proceedings to the greatest degree that is consistent with the ends of justice. * * * No 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.’ (Emphasis added.)

These two sections of the Penal Code must be read and construed together. When so read it is apparent that where the defendant is charged with a misdemeanor and with his consent a date has been fixed for trial beyond thirty days after he becomes subject to the jurisdiction of the court, the court can only grant, over the objection of the defendant, a continuance when good cause for the continuance is established in accordance with the provisions of section 1050 of the Penal Code, i. e. by ‘affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance.’

‘Proof is the effect of evidence, the establishment of a fact by evidence.’ Code Civ.Proc. § 1824. Evidence ‘is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact.’ Code Civ.Proc. § 1823. In the present case the court, in granting the People's motion for a continuance, had no evidence before it but merely the information obtained by it from the unsworn statements of the district attorney and information gained by his clerk over the telephone from an unidentified person. Further, the motion for continuance was not made upon notice and no effort was made before the trial court to show that the witnesses had been subpoenaed or that any diligence had been used to procure their attendance.

The court was, therefore, without power to grant the People's motion for a continuance and the People having failed to proceed with the trial it was the mandatory duty of the court to dismiss the action. Caputo v. Municipal Court, 184 Cal.App.2d 412, 7 Cal.Rptr. 435.

There can be no doubt that the provision of section 1050 of the Penal Code that ‘no 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’ is mandatory in character and a limitation upon the power of a court to grant a continuance and the fact that this section does not provide for any consequences if a court acts contrary to the mandatory provisions of the statute, is beside the point, for the statute having prescribed a procedure, any act of the court contrary to the statute was in excess of its jurisdiction. Abelleira v. District Court of Appeal, 17 Cal.2d 280, at page 288, 109 P.2d 942, at page 946, 132 A.L.R. 715; Rodman v. Superior Court, 13 Cal.2d 262, at page 270, 89 P.2d 109, at page 113; Burtnett v. King, 33 Cal.2d 805, at page 807, 205 P.2d 657, at page 658, 12 A.L.R.2d 333.

The People contend, however, that section 1050 is not mandatory but merely directory, relying upon Ray v. Superior Court, 208 Cal. 357, 281 P. 391; Zamloch, For and on Behalf of Cowan v. Municipal Court, 106 Cal.App.2d 260, 235 P.2d 25 and People v. Tenedor, 107 Cal.App.2d 581, 237 P.2d 679. The cases cited are not, in out opinion, decisive of the point here in question.

In Ray v. Superior Court, supra, the court did not have before it the part of section 1050 which is in question here and further, the court's statement that section 1050, Penal Code, was directory rather than mandatory is dicta inasmuch as the court held the defendant had waived his right to be tried within the statutory period. It is also apparent that the court was there construing section 1382 and section 1050 together and when it held that the provisions of section 1050 as it then existed, that the case should be set for trial within 30 days, as directory, it was merely giving effect to the provisions of section 1382 that the defendant might waive his right to be tried within the statutory period.

People v. Tenedor, supra, is not controlling here. The court there did not have before it any question as to the power of the trial court to grant a continuance in the absence of the showing required by the provisions of section 1050 which we have quoted above. There the court, as did the Supreme Court in Ray, construed the two statutes together and gave effect to the provisions of section 1382, which in effect provides the defendant may waive his right to trial within the statutory period.

It is true that the court, in Zamloch, For and on Behalf of Cowan v. Municipal Court, supra, which involved an order of the municipal court, continuing the trial of a criminal action over the objections of the defendant and without a showing having been made by the district attorney in accordance with the provisions of section 1050, did, in reliance upon Ray state that section 1050 was directory only. Nevertheless it held that a continuance granted without that showing deprived the defendant of his constitutional right to a speedy trial and entitled the defendant to be discharged.

To hold that a statute which is mandatory in its terms is directory only, is in effect equivalent to holding that the statute is a nullity. (See Witkin, California Procedure, vol. I, p. 187.) Although the courts will hold mandatory language to be directory where it is necessary so to do to avoid defeating the aims and purposes of the statute (see Garrison v. Rourke, 32 Cal.2d 430, 196 P.2d 884) or to avoid rendering the statute unconstitutional, there are no such reasons present here for holding the language in section 1050 to be directory rather than a mandatory limitation upon the power of the court to act, but to the contrary, holding the language to be mandatory makes it consonant with the policy of the sate that all criminal cases shall be set for trial, heard and determined at the earliest possible time consistent with the ends of justice as set forth in the first sentence of section 1050.

In view of the provisions of section 1050 of the Penal Code, quoted above, which announce the policy of this state as to early trials in criminal cases we cannot believe that it was the intent of the Legislature by the provisions of section 1382, to which we have referred, to permit a court to postpone over the objection of the defendant, a trial of an action charging a defendant with a misdemeanor beyond the date of trial fixed with his consent without a legal showing of good cause.

It is further our opinion that by amending paragraph 3 of section 1382 of the Penal Code to provide ‘that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 30-day period at the request of the defendant or with his consent, express or implied, * * * and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter’ it was the intention of the Legislature to make it clear that a defendant who had consented either expressly or impliedly to continuance beyond the 30-day period should not be entitled to a dismissal because of such continuance and that a continuance beyond that date should be deemed a coutinuance for a reasonable time if it were not for more than 10 days.

Let a peremptory writ of prohibition issue restraining the Municipal Court of East Los Angeles Judicial District in and for the County of Los Angeles, from any further proceedings in the action entitled ‘People of the State of California versus Edward Louis Malengo, Jr.,’ being an action numbered M 25628 in said court, except to enter an order of dismissal of said action.

NOURSE, Justice pro tem.

VALLEÉ, Acting P. J., and FORD, J., concur.