Amati

The People appeal from an order granting a defense motion to dismiss an action on the ground that it had not been "brought to trial" within 45 days after defendant's arraignment, as is required by Penal Code section 1382.

The 45th day was March 1, 1976. At 4:30 p.m. on that day a panel of prospective jurors was sworn to answer questions concerning their qualifications to act as jurors. The names of 12 prospective jurors were called and the 12 were seated in the jury box. The panel was then admonished by the court (Judge Rothschild) and a recess was taken until the next morning.

On March 2, 1976, defendant made the motion to dismiss and the court (Judge Kennick) made the order appealed from. We reverse.

(1) First, within the meaning and purpose of Penal Code section 1382 under the procedure followed on March 1, 1976, the matter was "brought to trial" on that date. The swearing of an actual trial jury obviously is a definitive step indicating that a case has been "brought to trial" within the meaning of the statute, since at that point jeopardy attaches ( People v. Katzman (1968) 258 Cal. App.2d 777, 788-789 [ 66 Cal. Rptr. 319 ]). But that is not to say that…