Callahan

The People appeal from an order of the superior court granting a peremptory writ of prohibition and from the judgment entered thereon. The judgment restrains the Municipal Court of the Inglewood Judicial District from taking any further proceedings against petitioner Patrick Allen Callahan and dismisses charged violations of Vehicle Code sections 14601, subdivision (a) (driving with a revoked or suspended license) and 23102, subdivision (a) (drunk driving).

The matter is before us on a transcript of the docket in the municipal court. This document discloses that defendant was arraigned on January 30,1970, at which time he was advised of his constitutional rights including the right to a speedy trial to be held within 45 days. He was released on bail. (Pen. Code, § 1382, subd. 3.) 1 Trial was set for March 10, 1970. *1014 On March 4, 1970, the cause was advanced on the calendar at which time defendant moved for a continuance. His motion was granted. The case was reset for April 14, 1970. On January 30 and March 4 defendant was without counsel. On April 14, 1970, a motion by his counsel to dismiss pursuant to Penal Code section 1382, subdivision 3, was made and denied. The…

I dissent. I would affirm. Defendant’s request for a continuance cannot be held to be a waiver of his right to a speedy trial since the docket of the municipal court does not show that the continuance he requested was for a trial date beyond the prescribed period. (Cf. In re Smiley, 66 Cal.2d 606, 629-631 [ 58 Cal.Rptr. 579 , 427 P.2d 179 ].) Likewise his failure to object then to the court’s setting a trial date beyond the prescribed period cannot be held to be a consent to the setting and thereby a waiver of his right to a speedy trial in view of the fact he was not then represented by counsel and had not been properly advised, as required in such circumstances since 1959 by the last sentence of Penal Code section 1382, of his right to a speedy trial. (See In re Smiley, supra, at pp. 629, 631-632 ; Burns v. Municipal Court, 195 Cal.App.2d 596, 598 [ 16 Cal.Rptr. 64 ], hg. den.; Hill v. Municipal Court, 206 Cal.App.2d 257, 260 [ 24 Cal.Rptr. 34 ].) Waiver is the voluntary relinquishment of a known right *1017 and the burden of proving waiver rests upon the party asserting it. (Brewer v. Municipal Court, 193 Cal.App.2d 510, 515-516 [ 14 Cal.Rptr. 391 ].) The People have not met…