Overby v. Municipal Court for Livermore-Pleasanton Judicial District of Alameda County7/8/1981
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
Civ. No. 50254
1981.CA.40508 ; 121 Cal. App. 3d 377; 175 Cal. Rptr. 352
July 8, 1981
JAMES OVERBY, PLAINTIFF AND APPELLANT,
v.
THE MUNICIPAL COURT FOR THE LIVERMORE-PLEASANTON JUDICIAL DISTRICT OF ALAMEDA COUNTY, DEFENDANT AND RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST AND RESPONDENT
Superior Court of Alameda County, No. 525481-1, Alan A. Lindsay, Judge.
James R. Jenner, Public Defender, Jay B. Gaskill, Howard L. Bloom and Allan D. Hymer, Assistant Public Defenders, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein and J. Patrick Collins, Deputy Attorneys General, for Real Party in Interest and Respondent.
Opinion by Feinberg, J., with White, P. J., and Barry-Deal, J., concurring.
Feinberg
James Overby appeals from a judgment of the Superior Court of Alameda County denying his petition for writ of mandate or prohibition. Appellant was arrested on April 17, 1979, on a misdemeanor
warrant which had issued on October 18, 1978, charging him with a violation of Vehicle Code section 23102 (driving under the influence). He was arraigned on May 2, 1979. Thereafter, he moved to dismiss in the municipal court on the grounds that the six-month delay in serving the arrest warrant violated his right to a speedy trial.
At the hearing in the municipal court, Overby argued that the delay in serving the arrest warrant was in and of itself prejudicial (his motion alleged no actual prejudice). That presumed prejudice, he contended, was sufficient to shift the burden to the People to make a showing of justification for the delay. The People, on the other hand, argued that Overby had to show actual prejudice prior to any requirement on their part to produce evidence of justification. The record below is vague as to whether either party felt that any prejudice had to be balanced against justification or whether prejudice had to be overcome by a showing of good cause. Overby presented no evidence in the municipal court. His motion to dismiss was denied.
Overby filed a petition for writ of mandamus and for an alternative writ of prohibition in the superior court. On October 5, 1979, the alternative writ issued staying the municipal court proceedings and commanding the prosecution to show cause why proceedings should not be permanently restrained.
On October 29, 1979, an answer to the petition was filed, which answer argued that defendant had not alleged or shown prejudice from the six-month delay. On November 13, 1979, the matter was argued, the alternative writ was discharged, and the petition was denied. On November 16, 1979, judgment was entered accordingly, and on January 15, 1980, appellant's notice of appeal was filed.
On appeal, appellant contends that:
a. In a misdemeanor case, a defendant's state constitutional right to a speedy trial (Cal. Const., art. I, § 15) is violated by any delay greater than 60 days between the issuance of an arrest warrant and arrest, absent a showing by the prosecution of good cause for the delay.
b. In misdemeanor cases, irrespective of a 60-day per se rule, an
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