Lenschmidt

The People appeal from an order dismissing an information against defendant-respondent Dan Lenschmidt. The sole question is the propriety of that dismissal under Penal Code section 1381 for failure to bring the matter to trial within 90 days of respondent’s demand letter.

While Lenschmidt was in jail in San Mateo County awaiting trial on burglary charges, a felony complaint was filed against him in Santa Clara County. Later, on September 5, 1978, he served the District Attorney of Santa Clara County with a demand to be brought to trial within 90 days. Under the terms of section 1381 the 90-day period commenced on that date, at the earliest. On October 24—some 49 days later—defendant was arraigned in Santa Clara County Superior Court. Trial was set for December 13, a date approximately 98 days after demand was received by the prosecutor.

After this arraignment and trial setting, respondent returned to San Mateo County just long enough to be sentenced to state prison. Respondent did not appear for trial in Santa Clara County on December 13; the matter was continued several times while orders to produce issued. Finally, on January 4, 1979, respondent’s motion to dismiss…