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Bellante v. Superior Court of Kern County

May 20, 2010


(Kern County Sup. Ct. No. KM019112A) Trial Judge: Steven M. Katz, Superior Court of Kern County

The opinion of the court was delivered by: Lampe, P.J.



This matter came before the court on a petition for writ of prohibition by petitioner and defendant Matthew Bellante on the grounds that the trial court's denial of Bellante's motion to dismiss for failure of a "speedy trial" was in error. This court granted an alternative writ and stayed further trial proceedings. Real party in interest (the eople) filed a response, and petitioner filed his reply. The matter was heard at argument on April 9, 2010.

Technically, the petition is more properly viewed as one for mandamus, not prohibition. An alleged attempted departure from proper action by a court may be considered one for prohibition, but mandamus is the appropriate remedy to compel the correct action upon review for abuse of discretion. Where the facts are undisputed and the law establishes the right of a party to an order or to the relief which the court has refused, the writ of mandamus applies. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 100, p. 994.) We will treat the petition as one for mandamus.

Here the essential facts are undisputed. On July 11, 2008, Bellante was involved in an automobile accident in Kern County, and he was arrested by California Highway Patrol Officer Tyre. Officer Tyre wrote a citation for driving under the influence, but no notice to appear was given nor was any promise to appear made. At the time of the incident, Bellante resided at 110 E. Belle Avenue in Bakersfield, the address on his driver's license, his address in Department of Motor Vehicles (DMV) records, and the address noted on the citation and incident report. A complaint was filed on July 28, 2008. A warrant issued on August 6, 2008 (presumably an at-large warrant). The warrant was never served on Bellante. Bellante has resided at the stated address openly and continuously since 2003. No effort was made to serve the warrant. Bellante learned of the warrant through the DMV and turned himself in at the Kern County Central Receiving Facility on August 20, 2009, where he was cited and released. He has not failed to appear.

On December 17, 2009, Bellante made a motion to dismiss for lack of a speedy trial. The People opposed. The matter was heard by the trial court on January 5, 2010. The matter was taken under submission, and the motion denied by minute order on January 6, 2010. This petition ensues.

The petitioner now takes the position in this writ proceeding that the trial court was in error (and abused its discretion) because under Serna v. Superior Court (1985) 40 Cal.3d 239 (Serna) and related authority, the delay of over one year from the filing of the complaint in this misdemeanor case results in presumptive prejudice, requiring the People to show justification for the delay, before any balancing by the court may take place pursuant to Barker v. Wingo (1972) 407 U.S. 514 (Barker). Bellante argues that because the arraignment occurred more than one year after the filing of the complaint, prejudice is presumed. Here, the People offered no evidence supporting any justification for delay and, therefore, Bellante argues that the trial court was compelled to grant the motion to dismiss.

The People concede that there was no evidence of justification for delay before the trial court. Nevertheless, the People argue that the presumption of prejudice to which Bellante is entitled merely "triggers" the court's opportunity and obligation to apply the Barker weighing process.

Although the trial court offered no opinion, it is apparent that the trial court followed the reasoning of the People in denying the motion. It is quite understandable that the trial court did so.

The trial court was not unequivocally advised of the argument that the defense now takes in this writ proceeding. Bellante's counsel appeared to concede the method of analysis advanced by the People at the hearing. The following exchange occurred between the trial court and Bellante's counsel:

"THE COURT: All right. My understanding of the -

"MS. POLAK: Okay.

"THE COURT: - Serna case is once the complaint is filed, that's an accusatory pleading. It's different than a complaint in a felony case that that starts the clock running, so then, prejudice is presumed if it's more than one year. I still ...

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