BILL NUMBER: AB 250	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Miller

                        FEBRUARY 10, 2009

   An act to amend Section 1382 of the Penal Code, relating to
criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 250, as introduced, Miller. Criminal procedure: trials: timing.

   Existing law requires that a defendant be brought to trial within
60 days of arraignment in a felony case, as specified. Under existing
law, the case must be dismissed if the defendant did not waive that
time limit or consent to an extension of time, as specified, and the
case is not brought to trial within the time limit. Under existing
law, the defendant may withdraw his or her waiver of time and then
the case is required to be brought to trial within 60 days of the
withdrawal of the waiver.
   This bill would require the withdrawal of the waiver to be done in
open court, as specified.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1382 of the Penal Code is amended to read:
   1382.  (a) The court, unless good cause to the contrary is shown,
shall order the action to be dismissed in the following cases:
   (1) When a person has been held to answer for a public offense and
an information is not filed against that person within 15 days.
   (2) In a felony case, when a defendant is not brought to trial
within 60 days of the defendant's arraignment on an indictment or
information, or reinstatement of criminal proceedings pursuant to
Chapter 6 (commencing with Section 1367) of Title 10 of Part 2, or,
in case the cause is to be tried again following a mistrial, an order
granting a new trial from which an appeal is not taken, or an appeal
from the superior court, within 60 days after the mistrial has been
declared, after entry of the order granting the new trial, or after
the filing of the remittitur in the trial court, or after the
issuance of a writ or order which, in effect, grants a new trial,
within 60 days after notice of the writ or order is filed in the
trial court and served upon the prosecuting attorney, or within 90
days after notice of the writ or order is filed in the trial court
and served upon the prosecuting attorney in any case where the
district attorney chooses to resubmit the case for a preliminary
examination after an appeal or the issuance of a writ reversing a
judgment of conviction upon a plea of guilty prior to a preliminary
hearing. However, an action shall not be dismissed under this
paragraph if either of the following circumstances exist:
   (A) The defendant enters a general waiver of the 60-day trial
requirement. A general waiver of the 60-day trial requirement
entitles the superior court to set or continue a trial date without
the sanction of dismissal should the case fail to proceed on the date
set for trial. If the defendant, after proper notice to all parties,
later withdraws  , in open court,  his or her waiver in the
superior court, the defendant shall be brought to trial within 60
days of the date of that withdrawal. If a general time waiver is not
expressly entered, subparagraph (B) shall apply.
   (B) The defendant requests or consents to the setting of a trial
date beyond the 60-day period. Whenever a case is set for trial
beyond the 60-day period by request or consent, expressed or implied,
of the defendant without a general waiver, the defendant shall be
brought to trial on the date set for trial or within 10 days
thereafter.
   Whenever a case is set for trial after a defendant enters either a
general waiver as to the 60-day trial requirement or requests or
consents, expressed or implied, to the setting of a trial date beyond
the 60-day period pursuant to this paragraph, the court may not
grant a motion of the defendant to vacate the date set for trial and
to set an earlier trial date unless all parties are properly noticed
and the court finds good cause for granting that motion.
   (3) Regardless of when the complaint is filed, when a defendant in
a misdemeanor or infraction case is not brought to trial within 30
days after he or she is arraigned or enters his or her plea,
whichever occurs later, if the defendant is in custody at the time of
arraignment or plea, whichever occurs later, or in all other cases,
within 45 days after the defendant's arraignment or entry of the
plea, whichever occurs later, or in case the cause is to be tried
again following a mistrial, an order granting a new trial from which
no appeal is taken, or an appeal from a judgment in a misdemeanor or
infraction case, within 30 days after the mistrial has been declared,
after entry of the order granting the new trial, or after the
remittitur is filed in the trial court, or within 30 days after the
date of the reinstatement of criminal proceedings pursuant to Chapter
6 (commencing with Section 1367). However, an action shall not be
dismissed under this subdivision if any of the following
circumstances exist:
   (A) The defendant enters a general waiver of the 30-day or 45-day
trial requirement. A general waiver of the 30-day or 45-day trial
requirement entitles the court to set or continue a trial date
without the sanction of dismissal should the case fail to proceed on
the date set for trial. If the defendant, after proper notice to all
parties, later withdraws his or her waiver, the defendant shall be
brought to trial within 30 days of the date of that withdrawal. If a
general time waiver is not expressly entered, subparagraph (B) shall
apply.
   (B) The defendant requests or consents to the setting of a trial
date beyond the 30-day or 45-day period. In the absence of an express
general time waiver from the defendant, the court shall set a trial
date. Whenever a case is set for trial beyond the 30-day or 45-day
period by request or consent, expressed or implied, of the defendant
without a general waiver, the defendant shall be brought to trial on
the date set for trial or within 10 days thereafter.
   (C) The defendant in a misdemeanor case has been ordered to appear
on a case set for hearing prior to trial, but the defendant fails to
appear on that date and a bench warrant is issued, or the case is
not tried on the date set for trial because of the defendant's
neglect or failure to appear, in which case the defendant shall be
deemed to have been arraigned within the meaning of this subdivision
on the date of his or her subsequent arraignment on a bench warrant
or his or her submission to the court.
   (b) Whenever a defendant has been ordered to appear in superior
court on a felony case set for trial or set for a hearing prior to
trial after being held to answer, if the defendant fails to appear on
that date and a bench warrant is issued, the defendant shall be
brought to trial within 60 days after the defendant next appears in
the superior court unless a trial date previously had been set which
is beyond that 60-day period.
   (c) If the defendant is not represented by counsel, the defendant
shall not be deemed under this section to have consented to the date
for the defendant's trial unless the court has explained to the
defendant his or her rights under this section and the effect of his
or her consent.