Opinion
Hearing Granted by Supreme Court Sept. 30, 1927.
COUNSEL
Morris Abraham and Charles I. Rosin, both of Los Angeles, for petitioner.
Asa Keyes, Dist. Atty., and Tracy Chatfield Becker, Deputy Dist. Atty., both of Los Angeles, for respondent.
OPINION
CONREY, P. J.
On petition filed, the writ was issued, to which return has been duly made. It appears that after trial and conviction of the defendant on a charge of murder, he appealed from the judgment, which appeal resulted in a reversal. The remittitur from the District Court of Appeal was filed in the office of the clerk of the superior court on the 26th day of April, 1927. Thereafter, on June 30, 1927, the cause was set down to be tried on August 3, 1927. The defendant objected to the order of June 30, 1927, and moved to dismiss the action on the ground that he had not been brought to trial within 60 days after filing the remittitur, as required by section 1382 of the Penal Code, and that he had been denied a speedy trial as guaranteed to him by the Constitution of the state of California (article 1, § 13). This motion to dismiss was denied upon the ground that said section 1382 has no application to the facts of this case, it appearing by the record that the defendant had been brought to trial within 60 days after the filing of the information.
It is provided by section 1382 as follows:
"The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * * "2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after * * * filing of the information."
In the earlier cases, under section 1382, Penal Code, it was held that failure to bring a criminal action to trial within 60 days after the filing of a remittitur following upon a successful appeal did not present a case within the terms of said section. People v. Giesea, 63 Cal. 345; People v. Lundin, 120 Cal. 308, 52 P. 807. On the other hand, in later cases, it seems to have been held that the filing of the remittitur marks the beginning of a new period of 60 days within which a case must be brought to trial, and that section 1382 applies where that limited period has elapsed. In re Begerow, 133 Cal. 349, 65 P. 828, 56 L. R. A. 513, 85 Am. St. Rep. 178; People v. Walker, 75 Cal.App. 195, 244 P. 94.
Assuming for the purposes of this decision that section 1382 of the Penal Code, and the 60-day rule therein stated, applies to a criminal prosecution after the decision of an appeal which has terminated by the filing of the remittitur in the superior court, it should be observed first that this application has been so made by judicial decision, bringing the stated case within the principle of that section, although literally it is not there. The effect of the clause, "unless good cause to the contrary is shown," should not be ignored. We may concede that upon a showing of notice to the district attorney, or of actual knowledge by him, that the remittitur has been filed, it becomes his duty to see that the case is brought to trial within the statutory period of 60 days. We may further concede that where a defendant has brought to the attention of the district attorney or of the court the fact of the successful termination of his appeal (a proceeding in which he was the actor), and there has been a neglect or refusal of the prosecution to bring the case to trial, the defendant is entitled to the benefit of the rule that under such circumstances the prosecution should be dismissed. But in the absence of such notice to the district attorney or knowledge on his part that the appeal has been terminated, it would be unreasonable to permit a defendant to take advantage of mere inadvertence and so escape prosecution on a criminal charge. In the case at bar so far as appears, the failure to bring the action before the court to be set for trial until 3 days later than the expiration of 60 days from the filing of the remittitur may have been nothing more than the result of inadvertence in not immediately discovering that the remittitur had been filed.
We think that, there being no direct statutory provision to the contrary, the absence of any showing of knowledge by the district attorney, or notice to him, that the cause has been returned to the superior court should in and of itself be held to constitute good cause for refusal to dismiss the action. Upon this ground we hold that petitioner was not entitled to the dismissal demanded by him.
The prisoner is remanded to custody.
I concur: YORK, J.
I dissent: HOUSER, J.