Opinion

In 1979 the Legislature enacted a statutory scheme 1 (“special proceedings in cases involving domestic violence”) embodied in Penal Code 2 sections 1000.6 to 1000.11, inclusive, 3 which provides for the *Supp. 42 diversion of certain misdemeanor defendants charged with crimes involving *Supp. 43 “domestic violence.” 4 For the most part, these statutes run parallel to the statutes which comprise the better-known statutory scheme for diversion of defendants charged with minor drug violations (“special proceedings in narcotics and drug abuse cases;” §§ 1000-1000.3, 1000.5).

The instant case requires that we determine the effect of certain proceedings required by the domestic violence diversion statutes on a misdemeanor defendant’s statutory speedy trial rights under section 1382, subdivision 3. 5 *Supp. 44 Specifically, we must decide whether, and to what extent, a defendant’s rights under section 1382, subdivision 3 are modified when said defendant is considered for diversion pursuant to the provisions of section 1000.7, subdivision (b), 6 but subsequently is not diverted.

Section 1000.7 requires that a defendant who wishes to be considered for diversion waive his or her right to a speedy trial during the pendency of the investigation into that defendant’s suitability for diversion by the probation department. If, following the probation department’s investigation, the defendant is found by the court to be a person who would be benefited by diversion, the defendant must, to be diverted, waive speedy trial rights for the duration of the diversionary proceedings (§ 1000.8, subd. (a)). 7 On the other hand, if, following the investigation of the defendant by the probation department, “the court does not deem the defendant a person who would be benefited by diversion, or if the defendant does not consent to participate, the proceedings shall continue as in any other case.” (§ 1000.8, subd. (a).) It is in the context of the latter situation that we must construe the elfect of section 1382, subdivision 3 in disposing of the instant appeal.

Facts

On December 26, 1980, appellant, Eugene Denman, then in custody, was arraigned on a misdemeanor complaint charging him with violations of sections 242 (battery), 273.5 (infliction of corporal injury upon spouse), and 245, subdivision (a) (assault with a deadly weapon). 8 Appellant entered a not guilty plea and did not waive his right to a trial within 30 days of the date of his arraignment (§ 1382, subd. 3). Trial was set for January 15, 1981, a date within the 30-day period. The public defender represented appellant at arraignment. On January 15, 1981, appellant moved to continue the trial to January 19, 1981, a date still within 30 days of December 26, 1980. The motion was granted.

On January 19, 1981, with appellant’s consent, the cause was referred to the probation department, pursuant to the provisions of section 1000.6, subdivision (b), for an investigation of appellant’s suitability for diversion. Appellant on this occasion, waived his right to a speedy trial as required by section 1000.7, subdivision (b) (see fn. 3, ante).

*Supp. 45 On February 18, 1981, the probation department filed its report of its investigation of appellant. For reasons not altogether clear from the record, appellant was not diverted. The court thereupon purported to “trail” the matter to the following day for “trial setting.”

On February 19, 1981, appellant requested that the public defender be relieved. This request was granted, and thereafter appellant remained in pro. per. status for the duration of the proceedings in the lower court. On the same dates, the municipal court docket reflects appellant’s case was continued to March 12, 1981, “on motion of the defendant.” 9

At the proceedings of March 12, appellant insisted that contrary to the February 19 docket entry, he had not moved for any continuance on that date, nor had he done so at any time other than the period from January 19 through February 18 (while he was being considered for diversion). The following colloquy ensued:

On March 23, 1981, some 33 days after diversion was denied, appellant’s trial began. Prior to the commencement of trial, appellant renewed his claim that he had at no time (subsequent to Feb. 18) waived his speedy-trial rights; he thereupon moved for dismissal of the charges against him. The court denied appellant’s motion. Upon the conclusion of trial, the court acquitted appellant of counts I and III (infliction of corporal injury on a spouse and assault with a deadly weapon, respectively). However, the court found appellant guilty of count II (battery).

On April 28, 1981, appellant was placed on formal probation for a period of two years on condition he spend fifteen days in the county jail (with credit for nine days served). The jailtime portion of appellant’s sentence was stayed until final disposition of this appeal.

The Decision of January 13, 1983

Our original decision in the instant case (filed on Jan. 13, 1983) held that, in the absence of any contrary authority, section 1382, subdivision 3 required that a defendant, who at one point in the proceedings had consented to a trial date beyond the statutory 30 or 45-day limit, but subsequently objected to any further delay, be brought to trial no later than 10 days from the date upon which the defendant makes known his objection. This holding *Supp. 47 accords with existing law (§ 1382, subd. 3); Owens v. Superior Court (1980) 28 Cal.3d 238, 248-250 [ 168 Cal.Rptr. 466 , 617 P.2d 1098 ]). Thus, our finding that appellant did not at any time subsequent to denial of diversion “move for a continuance” (see fn. 9, ante), compelled reversal of the judgment, inasmuch as defendant raised timely objections at every opportunity, and moved for dismissal before trial. The People petitioned for rehearing, principally upon their reading of an earlier decision of this court, People v. C. F. Braun & Co. (1977) 71 Cal.App.3d Supp. 12 [ 139 Cal.Rptr. 857 ]. Braun dealt with a similar (though not identical) situation to that presented by the case at bar. In Braun, the defendants’ consent to a date beyond the 45-day period applicable in that case was occasioned by a defense petition for extraordinary relief, rather than by proceedings had pursuant to diversionary statutes. The defendants moved for dismissal after more than 30 days had elapsed from the date upon which the California Supreme Court denied their petition for hearing. No express provision appears in section 1382, subdivision 3 or elsewhere regarding the number of days in which a defendant must be brought to trial following denial of pretrial review. The Braun court held that “while section 1382 is the applicable statute, the time within which a matter must be brought to trial in the municipal court, absent waiver or good cause for some longer period, is 45 days when the defendant is not in custody” (71 Cal.App.3d Supp., at p. 15). The court also observed that “[o]ur reasoning hereafter set forth would lead to the conclusion that if a defendant is in custody, a 30-day period would apply” (71 Cal.App.3d Supp., p. 15, fn. 1). As noted heretofore, appellant was in custody at the time of arraignment; as also noted, appellant was not brought to trial until 33 days had elapsed following the denial of diversion. Thus, the reasoning applied in Braun is of no aid to the People with respect to the instant matter. Indeed, dismissal of the charges against appellant would be mandated were we to view Braun as controlling.

The Petition for Rehearing

We granted the People’s petition for rehearing not on the basis of any purported “conflict” with the Braun decision and our original opinion, but to consider the question of the interplay between diversion statutes and section 1382. It appeared to us unfair that the People could be forced into a position whereby they would have to proceed to trial within 10 days from a date upon which it could reasonably have been expected that the proceedings against the defendant would terminate at least for the time being. Moreover, the defendant would be in a position to unilaterally decide whether or not the People would be so compelled, by the simple device of refusing to consent to further diversionary proceedings (§ 1000.8, subd. (a)). The People should not be placed in such a position as the result of proceedings *Supp. 48 undertaken entirely for the defendant’s benefit, and with his initial consent. 10

Upon Denial or Refusal of Diversion Pursuant to Section 1000.6 et seq., the People Are Entitled to a New 30-day Period in Which to Bring Defendant to Trial

Section 1382, subdivision 3 contains explicit provisions applying to situations wherein a second trial of a defendant on the same charges is contemplated. Specifically, the statute provides that “in case the cause is to be tried again following a mistrial, [or] an order granting a new trial from which an appeal is not taken, or an appeal from the inferior court” the defendant must once again be brought to trial within a 30-day period. The respective dates upon which the 30-day period commences in each of the three situations described by the statute are as follows:

A number of cases have arisen in which a defendant’s speedy-trial rights were implicated by procedural situations not expressly covered in section 1382. In Sykes v. Superior Court (1973) 9 Cal.3d 83, 92 [ 106 Cal.Rptr. 786 , 507 P.2d 90 ], the State Supreme Court held that the statutory period-in that case the 60-day period applicable to felony defendants under section 1382, subdivision 2—applied with equal force to a situation wherein a defendant establishes his right to retrial by means of a habeas corpus proceeding. The court reached this conclusion despite the failure (at that time) of section 1382, subdivision 2 to make any reference to such a proceeding. In Matthews v. Superior Court (1973) 35 Cal.App.3d 589, 595-596 [ 110 Cal.Rptr. 843 ], the question arose as to the speedy trial rights, if any, to be accorded a felony defendant who had instituted pretrial proceedings in prohibition. This is yet another situation in which section 1382 is silent. The Matthews court held that: “The rationale of Sykes is applicable in the instant case. We accordingly hold that where proceedings in prohibition are instituted by an accused and during the pendency of such proceedings the appellate court issues an order staying the trial, the accused, upon the denial *Supp. 49 of such petition for prohibition and the concomitant termination of the stay, must be brought to trial within 60 days from the date of the order denying the petition.” ( 35 Cal.App.3d at p. 596 .)

Sykes and Matthews , particularly the latter, appear on point. Both holdings apply section 1382 to situations not expressly controlled by the provisions of that statute. 11 Accordingly, we hold that whenever a criminal defendant waives his speedy-trial rights pursuant to the provisions of section 1000.7, subdivision (b) to be considered for diversion under section 1000.8, subdivision (a), but subsequently is not diverted, there commences on the date upon which diversion is denied or refused a new time period within which the defendant, if he does not consent to a longer period, must be brought to trial. Failure to bring such nonconsenting defendant to trial within the new period allotted will require the dismissal of the charges pursuant to the commands of section 1382, subdivision 3 upon defense motion.

There remains the question of the length of the new time period. In the instant case, the People argue that they should be allowed a full 45 days following denial of diversion in which to bring appellant to trial. The People’s reasoning apparently rests upon the premise that, although appellant was arraigned in custody, he was no longer in custody on February 18, 1981, the date upon which diversion was denied. The People would treat the denial of diversion as a kind of “arraignment,” and suggest that the parties are, at that point, in the same position relative to one another as they were at the time of the “real” arraignment.

There is no authority for the People’s position that a defendant may be considered to have been “arraigned” on a date other than the date appellant *Supp. 50 is “really arraigned.” Although Braun, supra, 31 Cal.App.3d Supp. 12 , contains some language to the effect that 45 (additional) days should apply to all cases which have not yet been tried, we do not find this reasoning compelling. Moreover, as noted previously herein, Braun explicitly based its result on the custodial status of the defendants at the time of arraignment. There is nothing in Braun to suggest that the court there had any date of arraignment in mind other than the date upon which the defendants were arraigned.

Just as we do not find it equitable that the People could be forced to trial within a 10-day period following denial or refusal of diversion (i.e., as though the period in which diversion is considered were merely a continuance), neither do we think it justifiable to allow them a full 45-day period as though no proceeding at all had yet taken place. Indeed, to even ascertain that a given defendant may be eligible for diversion under the domestic violence diversion statutes, the People must investigate that defendant’s status vis-á-vis the eligibility requirements set forth at section 1000.6, subdivision (a) (for a discussion of the scope of this investigation, see Sledge v. Superior Court (1974) 11 Cal.3d 70, 73-74 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ]). The People would have the initial 30 or 45 days, followed by yet another 45 days, as well as the period during which a defendant has waived time for diversion consideration, in which to prepare for trial. If 10 days are too few, 90-plus days are too many. The People’s interests are quite adequately protected by the allowance of 30 additional days (for a total of either 60 or 75 days, rather than the present 40 or 55 days which result from an ordinary continuance beyond the statutory period and the 10-day grace period which follows such a continuance.

The judgment is reversed with instructions to dismiss.

Foster, P. J., and Reese, J., concurred.

Statutes 1979, chapter 913, section 1, page 3141 as amended by Statutes 1980, chapter 1158, sections 10 to 13, pages 3882 to 3884.

All Code sections herein refer to the Penal Code.

These Code sections provide as follows:

See section 1000.6, subdivision (d) for definition of “domestic violence.”

Penal Code section 1382, subdivision 3 provides as follows:

See footnote 3, ante.

See footnote 3, ante.

Effective January 1981, section 1000.6, subdivision (a) was amended (see fn. 1, ante) to prohibit diversion to defendants charged with violation of section 245, subdivision (a) or section 273.5. This amendment apparently does not apply to appellant’s case, which was filed in December of 1980.

The docket for February 19, as noted, reflected that a continuance to March 12, was granted, pursuant to appellant’s motion. Appellant, at his subsequent court appearances on March 12 and March 23, denied that he had requested any continuance on February 19. We permitted the record on appeal to be augmented with the reporter’s transcript of the February 19 proceedings. After considering the transcript, we found that appellant, in pro. per. did not “request” any continuance, but, rather, repeatedly urged the court that he wished to go to trial “as soon as possible . . . before March.” The trial court was unyielding; appellant’s final acquiescence can scarcely be described as a “defense motion for a continuance.” Further, as we held in our original decision, appellant was not advised of his rights under section 1382, as that statute requires, nor of the consequences of waiving those rights. Thus, even if appellant had actually moved for the continuance of the proceedings, his waiver of his speedy trial rights would not have been valid.

We do not mean to suggest that appellant in the instant matter was guilty of any sort of dilatory conduct. On the contrary, appellant handled his defense with integrity.

We are compelled to make an observation regarding the rationale of the Sykes decision and the bearing of that rationale on subsequent holdings. Sykes found that habeas corpus proceedings were “included” in section 1382, despite the failure of that section to state as much. The Sykes court believed such a holding was compelled by the fact that it would otherwise be forced to declare section 1382 unconstitutional on equal protection grounds ( 9 Cal.3d, at p. 92 ). The court reasoned that there was no compelling state purpose in discriminating against defendants who had established their right to a new trial via writ proceeding as had Sykes, rather than by direct appeal (as contemplated by the provisions of § 1382). The Sykes court took note of its duty to construe statutes as constitutional whenever such construction was possible.

The Sykes rationale was followed by the Court of Appeal in Matthews v. Superior Court, supra, 35 Cal.App.3d 589 . That rationale was clearly applicable to the latter case. However, its application to the instant case is considerably less certain. Although we have construed section 1382 to provide the prosecution with 30 additional days to bring a defendant to trial following denial of diversion, it is quite apparent that the statute is, on its face, silent as to this proposition. Moreover, it is clear that our decision in the instant matter is not compelled by the Sykes rationale, i.e., on grounds of denial of “equal protection” to the prosecuting agency. Appellant, furthermore, did not raise this issue, and, consequently, the People did not discuss it. Hence, we reached our decision herein without considering, on equal protection grounds, the applicability of Sykes and its progeny to the case at bar.