Childress

Petitioner seeks a writ of mandate to compel the respondent court to dismiss a felony information.

On March 26, 1971, petitioner, George Childress, was charged in case A-271195 in count I with assault with a deadly weapon in violation of section 217 of the Penal Code, and in count II with armed robbery in violation of section 211 of the Penal Code, in a complaint filed in Los Angeles Municipal Court. The offenses were alleged to have occurred on March 25, 1971. A warrant for. petitioner’s arrest was issued in late March or early April 1971.

At the time the complaint in the above case was filed, there were pending against petitioner both a federal charge and Pasadena Superior Court case A-546346 in which a complaint had been filed in July 1970, charg *101 ing armed robbery. On March 25, 1971, the date of the offenses alleged at bench, petitioner was free on bail in the Pasadena case and was scheduled to appear in late March on the federal charge.

Officer Slaff of the Los Angeles Police Department, was assigned on March 25, 1971, to investigate the present case. Slaff interviewed the victim and witness to the crime charged, confirming petitioner’s identity and obtaining…

I concur in the decision of the majority to require specific findings by the trial court on the question of whether the defendant in fact suffered any prejudice from the delay. However, I feel compelled to expand on the reasoning contained in the majority opinion.

Of the four prongs of the Barker and Jones test, it would appear that the two most crucial ones are those of (1) the reason for the delay, and (2) the prejudice to the defendant. In the instant case, we are not dealing *104 with a deliberate delay by which the prosecution affirmatively sought to gain some advantage over the defendant. As the majority clearly points out this was a pure case of inadvertence on the part of the record keeping personnel of the Los Angeles County Sheriff’s Department. In such a situation it would seem that the court should not indulge in a presumption that the defendant was prejudiced but should undertake to make an actual determination of whether prejudice in fact exists.

The defendant’s showing at the original hearing was very thin indeed. He does not allege in his affidavit that he - ever had the actual ability to locate the so-called missing witnesses. For example, as to Mary Thurmond,…

Joseph P. Busch, District Attorney, Harry B. Sondheim and Eugene D. Tavris, Deputy District Attorneys, for Real Party in Interest.

OPINION

ROTH, P.J.

Petitioner seeks a writ of mandate to compel the respondent court to dismiss a felony information.

On March 26, 1971, petitioner, George Childress, was charged in case A-271195 in count I with assault with a deadly weapon in violation of section 217 of the Penal Code, and in count II with armed robbery in violation of section 211 of the Penal Code, in a complaint filed in Los Angeles Municipal Court. The offenses were alleged to have occurred on March 25, 1971. A warrant for petitioner's arrest was issued in late March or early April 1971.

At the time the complaint in the above case was filed, there were pending against petitioner both a federal charge and Pasadena Superior Court case A-546346 in which a complaint had been filed in July 1970, charging armed robbery. On March 25, 1971, the date of the offenses alleged at bench, petitioner was free on bail in the Pasadena case and was scheduled to appear in late March on the federal charge.

Officer Slaff of the Los Angeles Police Department, was assigned on March 25, 1971, to…