Posted by ChrisM on August 02, 2002 at 14:30:46:
Did a little research, you'll find that Rost has been impliedly overruled. And if it won since 1981 (when the case below was cited), it only means that someone wasn't on the ball. You will have to establish prejudice by the delay.
Not offered for any specific legal advice, and not intended to nor does it establish any lawyer/client relationship. So there.
quoted from People v. Rogers (1981) 120 Cal.App.3dSupp. 7.........
"The period between the time a complaint is issued and the defendant's arrest is governed by the speedy trial provisions of the *10 California Constitution, article I, section 15. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504, 149 Cal.Rptr. 597, 585 P.2d 219.) In the absence of an express statutory provision, the question of a denial of a speedy trial for this period is controlled **315 by the balancing test first announced in Jones v. Superior Court (1970) 3 Cal.3d 734, 740, 91 Cal.Rptr. 578, 478 P.2d 10 ("The prejudicial effect of the delay on ... (a defendant) ... must be weighed against any justification for the delay.") and refined by the United States Supreme Court in Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 and our Supreme Court in a number of cases, including Scherling v. Superior Court, supra. In the absence of a designated statutory period, as in Penal Code section 1382, the claimed speedy trial violation requires the following analysis: First, the defendant must show that he has been prejudiced by the delay. Second, the burden then shifts to the prosecution to justify the delay. Third, the court balances the harm against the justification. (People v. Allen (1979) 96 Cal.App.3d 268, 278-279, 158 Cal.Rptr. 54; People v. Lawson (1979) 94 Cal.App.3d 194, 198, 156 Cal.Rptr. 226.)
[3] It is only in those situations where the Legislature has implemented the speedy trial guarantee in a statute specifying a time limit in days in which a defendant is to be brought to trial that the balancing test is not applied and prejudice is presumed. In applying the statutory period, the defendant, claiming a speedy trial violation, is presumed to have suffered prejudice (Scherling v. Superior Court, supra) and the People have the burden of justifying the delay by a showing of "good cause." (Pen.Code, s 1382; see Owens v. Superior Court (1980) 28 Cal.3d 238, 168
In the case of a felony, the statutory period is 60 days "... after the finding of the indictment or filing of the information ..." (Pen.Code, s 1382, subd. 2; Scherling v. Superior Court, supra) and in the case of a misdemeanor, the statutory time commences "... (r)egardless of when the complaint is filed ...." when the defendant is arraigned. In our instant case, the statutory period had never begun until defendant was arrested in 1979 on the 1976 arrest warrant and then arraigned on November 14, 1979. Defendant was not within the statutory guarantee before his arrest and arraignment. The presumption of prejudice would not have been applicable to defendant if he were charged with a felony and there does not appear to be any logical reason why he should be entitled to the presumption merely because he is *11 charged with misdemeanors. The 1930 decision in Harris v. Municipal Court, supra, and the 1960 decision in Rost v. Municipal Court, supra, support defendant's contention that a presumption of prejudice exists for postmisdemeanor complaint delay, but these decisions have been superseded and impliedly overruled by the later holdings of Barker v. Wingo, supra, Jones v. Superior Court, supra, and Scherling v. Superior Court, supra. We decline to follow the dicta [FN2] in People v. Lawson, supra, 94 Cal.App.3d at p. 199, 156 Cal.Rptr. 226, which states that Harris, Rost as well as Gutterman v. Municipal Court and Hackel v. Municipal Court are consistent with the present California law. (See People holding that dicta is without force as precedent.)