Shane

This case comes to us on certification from the appellate division of the superior court to decide two unsettled questions of law; (1) whether a trial court’s due diligence determination in the context of a defendant’s right to a speedy trial is subject to independent review or is limited to review for abuse of discretion; and (2) whether, as a matter of law, the prosecution was required to subpoena a key witness more than four days before trial in a misdemeanor case to show due diligence, and thus good cause for the delay, when the trial date could have been advanced to an earlier date, rather than continued, had the witness been subpoenaed sooner.

We conclude abuse of discretion is the proper standard of review where the right to a speedy trial is solely predicated on the provision requiring a trial within a prescribed number of days under Penal Code section 1382 and in the absence of any affirmative showing of prejudice implicating a federal constitutional speedy trial right. We further conclude that issuing a subpoena four days before the initial trial date in a misdemeanor case does not, as a matter of law, establish a lack of due diligence simply because, in…