This is an appeal from a judgment 1 dеnying a petition for a writ of mandate to compel respondent justice court to enter a dismissal of an action pending therein against appellant.
On April 14, 1964, a criminal complaint was filed in the Justice Court of the Benicia Judicial District, County of *278 Solano, charging appellant with a violation of Penal Code section 242 (battery), a misdemeanor. On that date appellant was arrested and released on his own recognizance. On April 16, 1964, appellant’s counsel appeared and the cause was continued until April 28, 1964. On April 28, appellant’s counsel appeared and entered a plea of not guilty on behalf of aрpellant, whereupon the court set the cause for trial on June 25, 1964, without objection by said counsel. On June 22, 1964, pursuant to a stipulation in open court between counsel for the parties, the trial was continued to October 13. On October 13, pursuant to a similar stipulation, the trial was continued to November 17, 1964. Defendant did not appear personally on any of the foregoing occasions.
On November 5, 1964, appellant filed a motion to dismiss and for a change of venue. The court denied the motion to dismiss but granted appellant’s motion for a change of venue to the Justice Court of the Vacaville Judicial District. At the hearing of the above motion, appellant’s counsel informed both the court and the district attorney that he would not request or consent to any further continuance. The judge then told both counsel that on his own motion he would take the matter off calendar for November 17, 1964. The district attorney specifically requested the court to continue the cause to a date certain for resetting for trial but the court declined to do so because it was not aware of the trial calendar of the Vacaville justice court. An attempt to reach the latter court by telephone was unsuccessful. As a result the case was neither set for trial nor continued tо a specific date to be set for trial.
On December 8, 1964, a letter was sent by the Vacaville justice court to the district attorney and a copy thereof to appellant’s counsel, notifying the parties that the cause had been set for trial for January 14, 1965. This notice was received by appellant’s counsel on December 9 or December 10, 1964. Nothing was done by appellant until December 22, 1964, when he filed in respondent court a motion to dismiss the action on the ground that appellant had not been brought to trial within the time prescribed by Penal Code, section 1382, subdivision 3. On December 29, the motion was argued and denied. On December 31, 1964, appellant filed in the court below his. petition for writ of mandate which was argued and submitted on the petition and supporting affidavit (see fn. 1, ante) and thereupon denied. This appeal followed.
*279
The right of a defendant in a criminal case to a speedy trial is guaranteed by the Constitution of California (art. I, § 13) and declared and implemented by statute (Pen. Code, §§ 686, 1382).
2
The constitutional provision establishes a fundamental right and is self-executing
(People
v.
Godlewski
(1943)
Penal Code section 1382, as in effect at the time of appellant’s motion, provided in relevant part as follows: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: . . . 3. Regardless of when the complaint is filed, when a defendant in a misdemeanor ease in an inferior court is not brought to trial within 30 days after he is arrested . . . ; except that an action shall not be dismissed under this subdivision (1) if it is set for trial on a date beyond the prescribed period at the request of the defendant or with his consent, express or implied, and the defendant is brought to trial on the date so set for trial or within 10 days thereafter. ...”
Appellant contends (1) that respondent court should have dismissed the action under Penal Code section 1382 because he was not brought to trial within 10 days after November 17, 1964, the last trial date to which he consented; and (2) that in any event the court should have dismissed the action under said section because he had not been brought to trial within 30 days after November 13, 1964, when his motion for change of venue was granted by the Benicia justice court.
Before we consider these points, we must dispose of respondent’s counter argument that section 1382 is not applicable at all to the facts of the instant case and that appellant’s right to a speedy trial must be examined only in the *280 light of the pertinent constitutional provision (Cal. Const., art. I, § 13) whiсh contains no specific time period. Appellant has made no showing, says respondent, of a denial of such constitutionally guaranteed right.
The Attorney General’s argument as to the nonapplieability of the above statute is grounded on the premise that the “time provisions of Penal Code section 1382 do not apply to a given case unless specifically covered by the statute. ’ ’ In support of this proposition, he cites, without any discussion whatsoever,
People
v.
Murata
(1960)
However, the Attorney General’s reliance upon Alpine and Marshall, supra, cases which dealt with section 1382 prior to its revision in recent years, persuades us to examine them more closely to ascertain whether they furnish any valid reason for concluding that section 1382 must specifically cover a procedural problem to be operative at all. We begin by noting that section 1382 was amended in 1951 (Stats. 1951, ch. 1674, § 140, p. 3856) to provide for dismissal in superior court actions where, in instances of a retrial following reversal on appeal, a defendant is not brought to trial *281 “within 60 days aftеr the filing of the remittitur in the trial court” and to provide for dismissal in inferior court actions where in a similar situation a defendant is not brought to trial “within 30 days after the remittitur is filed in the trial court or within 30 days after the judgment on appeal becomes final, ...” By a 1959 amendment (Stats. 1959, ch. 1693, § 3, p. 4093) section 1382 was further amended so as to make such 60-day and 30-day time periods applicable in instances of mistrial and orders granting new trial from which no appeal is taken. Thus amended, subdivisions 2 and 3 at the time of appellant’s motion read in pertinent part as set forth below in the footnote. 3
It is to be borne in mind, therefore, that
Alpine
and
Marshall,
on which the Attorney General relies, deal with section 1382 not as it presently reads but as it read before the foregoing revisions. Prior to the 1951 amendment it was held that the time periods prescribed in section 1382 did
not
apply to a retrial of an action after reversal on appeal.
(People
v.
Giesea
(1883)
The Attorney General’s cited cases neither expressly declare, nor furnish any discernible basis for, the broad thesis that section 1382 must specifically cover a procedural situation in order to be applicable. As we have seen, under former law, while the section was held inapplicable to retrials after reversal on appeal, it was nevertheless held applicable to retrials after declaration of a mistrial. Indeed the Attorney General’s argument not only overlooks this decisional background but ignores the purpose and meaning of section 1382. Under the former law, the rationale of
Alpine
in еssence was this: In a reversal ease, the statute had been complied with because the defendant
had
been brought to trial initially even though he had to be tried again, whereas in a mistrial case, the mistrial was equivalent to no trial. (See
In re Alpine, supra,
We turn to appellant’s first claim that the action should have been dismissed by the Vacaville Justice Court under section 1382 because he had not been brought to trial within 10 days after November 17, 1964 “the last date to which defendant consented,” As previously noted, section 1382, *283 subdivision 3, at the time of appellant’s motion provided that an action should not be dismissed “if it is set for trial on a date beyond the prescribed period at the request of the defendant or with his consent, express or implied, and the defendant is brought to trial on the date so set for trial or within 10 days thereafter. . . .” (Italics added.) Appellant argues that the above statute when read in conjunction with Penal Code section 1432 4 5 imposed upon the Vacaville justice court the obligation of bringing appellant to trial within such 10-day period.
The argument has no merit. The action had been set for trial with appellant’s consent in the
Benicia
justice court beyond the period of 30 days after his arrest, to wit for November 17, 1964. This was the trial date agreed to by defendant
in that court
and if he had not been brought to trial therein within 10 days thereafter he would have been entitled to a dismissal by the Benicia justice court, absent a showing of good cause to the contrary. However defendant moved for and seсured an order changing the place of trial to the Vacaville justice court. This had the effect of nullifying the above trial date
6
and it became necessary for the Vacaville court by its own order and pursuant to its own procedures to set the action for trial anew. The 10-day provision of the statute never became operative in the Vacaville court because the action had never been set for trial in that court until the issuance of its December 8 letter setting it for trial for January 14, 1965. If as a result appellant lost the benefit of the 10-day provision and thereby was subjected to additional delay in being brought to trial, this was brought abоut by appellant’s own act in moving for a change of venue. (See
Muller
v.
Justice’s Court
(1954)
*284 Moreover, we observe that appellant did not raise this point in the court below. On the contrary, from an examination of the instant record, appellant’s counsel appears to have agreed with the district attorney that, upon the granting of appellant’s motion for change of venue, a new 30-day period started running. 6
We therefore reach appellant’s contention that the action > should have been dismissed because he was not brought to trial within 30 days after the order changing venue on November 13,1964.
As we have observed, the parties seem to have agreed in the court below that this was the applicable time period in а change of venue situation. To the best of our knowledge, no reported California case has expressly articulated such a rule although two cases have proceeded on the assumption that upon a change of venue in respect to an action in an inferior court, a new 30-day period starts running.
(Muller
v.
Justice’s Court, supra,
In
Muller,
the action had been set for trial for June 20, 1952, in the Justice Court of the Fourth Township, County of San Mateo. On June 19, 1952, the defendant made a motion for a change of venue which was granted on June 20, 1952, and the case ordered transferred to the Justice Court of the Third Township. In affirming the denial of a writ of mandate to compel dismissal by the latter court, Division Two of this court held that the delay thereafter ensuing because of the pendency of proceedings in prohibition instituted by defendant to prevent any trial being held “is a showing of good cause for not proceeding with the trial within 30 days after June 20, the date when the motion for change of venue was granted.” (
In
Gregory, supra,
the action was set for trial by a jury in the Justice Court of the South Sacramento Judicial District for July 18, 1957. Because of the disqualification of the trial judge, it was transferred to the Municipal Court of the City
*285
of Sacramento, in which trial was set for November 20, 1957. On the latter date, it was remanded by the municipal court to the justice court. Nothing further occurrеd until January 14, 1958, when the court notified counsel for the parties that the case would be placed on the February 4, 1958, calendar for the purpose of being set for trial. Pursuant to telephone conversations between the judge and counsel for both parties, but in the absence of defendant and his counsel, the court set the action for trial on March 6, 1958. The defendant made no objection until March 3, 1958, when he filed a motion to dismiss, which was denied. Subsequent denial of his petition for a writ of prohibition was reversed on appeal, the court stating: “Since it is agreed that the remanding of the case by the Sacramento Municipal Court to the resрondent court on November 20, 1957, had the effect of starting a new 30-day period for trial unless the provisions of section 1382, subdivision 3, were complied with, it follows that unless good cause to the contrary is shown compliance with the statute required that appellant’s trial should have begun on or before December 20,1957.” (
Although no issue seems to have been raised on the point in either case, the rule to which both
Muller
and
Gregory
gave recognition is consonant with what appears to be the uniform rule throughout the United States that, where in a criminal case a defendant’s motion for change of venue is granted, the statutory time for bringing him to trial is reinstated and the delay cаused by such motion cannot be charged to the prosecution. (See
People
v.
Rankins
(1960)
Indeed the general rule can be stated that the accused is not entitled to a dismissal for delay in bringing him to trial when such delay has been caused by proceedings *286 or motions instituted by him, such as motions for a change of venue. (22A C.J.S., Criminal Law, § 471, pp. 49-50.) We therefore hold that where, as in the instant case, a defendant in a misdemeanor case in an inferior court seeks and obtains an order changing venue, a new 30-day period for bringing him to trial as specified in subdivision 3 of section 1382 starts running from the date of such order. We are satisfied that such a rule subserves the purpose and intent of the statute.
Applying the above rule to the facts of the instant ease, it is manifest, and the parties seem to have agreed, that appellant had to be brought to trial in the Vacaville justice court within 30 days of November 13, 1964.
8
However, since the thirtieth day, December 13, 1964, was a Sunday, the applicable time period was extended and it was therefore necessary for appellant to be brought to trial on or before Monday, December 14, 1964. (Code Civ. Proc., § 12a;
Hill
v.
Municipal Court
(1962)
In the leading case of
People
v.
Wilson, supra,
Appellant acknowledges the two requirements laid down in Wilson, indeed refers to them in his opening brief and also concedes that he made no objection to the setting of the case beyond December 14. To extricate himself from such an indefensible position he first argues that an objection was made by his counsel in the Benicia justice court on November 13, 1964, to any further continuances beyond November 17, which objection “was in the record transferred to the Vacaville Justice Court . . . [and] should have indicated defendant’s desire for a speedy trial and his objection in advance to January 14 as a trial date.” (Italics added.) But appellant did not see fit to introduce the justice court record in the court below and on this record it cannot be determined if such objection was entered therein. In any event, appellant’s theory of an “anticipatory” objection must fail since under the rule set forth in Wilson a defendant must object at the time the cause is set for trial and it is beyond dispute that no date for the trial in the Vacaville justice *288 court was set when appellant’s counsel allegedly made his objection in the Benicia justice court.
Appellant next argues that while it can be presumed that a defendant has consented to a postponement of his trial by failure to make timely objection when either the defendant or his counsel is present in court at the time the ease is set for trial, it is not reasonable to indulge in the same presumption where, as here, the case is set in the absence of both the defendant and his counsel and the latter is notified by mail. We disagree. The defendant is presumed to have consented and therefore waived his right because he or his counsel has failed to object, not because either of them has been present in court. Their presence in court is merely a circumstance affording ready proof of their failure. Ordinarily in felony cases it happens that either the accused or his counsel is present when the crucial episode occurs 9 but, if such a case could properly be set for trial in their absence, it would still be incumbent upon them to object to a delayed trial date and the rationale of the rule would still impel a conclusion of consent from a failure to object. Wilson does not restrict the rule by any condition of рersonal presence in court.
On the other hand, where, as in the instant case, a defendant is charged with a misdemeanor, waiver may occur in a different milieu. It may frequently happen that the defendant is not personally present and that while he may appear through his counsel at necessary stages of the proceeding, the case may be set for trial even in his counsel’s absence.
10
The only requirement in connection with the setting is that “After his plea, the defendant is entitled to at least five days to prepare for trial” (Pen. Code, § 1049) but even this right may be waived.
(People
v.
Severino
(1953)
122
Cal.App.2d 172, 181 [
Appellаnt further urges that since his counsel received the notice of time of trial on December 10, 1964, 11 it would have been useless for said counsel to have objected; that any objection by letter mailed on December 10 or December 11 “would presumably have reached the court on Monday, December 14th”; that there was not sufficient time for appellant to move for an advancement of the trial; and that to assert his constitutional right to a speedy trial, appellant’s counsel “would theoretically have had to call together” judge, prosecution and witnesses “without prior notice to anyone.”
To support this argument appellant relies upon
Brewer
v.
Municipal Court
(1961)
Appellant’s argument lacks merit and is not saved by any support from the above two eases. Assuming that the pivotal question now narrows to an inquiry as to whether appellant’s counsel had a “reasonable opportunity” to object, it is clear that this factual question was decided against appellant by respondent court in denying appellant’s motion to dismiss and equally clear that we cannot conclude as a matter of law that there was no waiver of appellant’s right to a speedy trial. Appellant had a minimum of two and one-half court days (four and one-half days in all) in which to vоice an objection as opposed to only
one
day in
Bishop, supra.
We think that appellant’s counsel could have and should have taken immediate steps on Thursday, December 10, 1964, to notify respondent court that it had set the trial beyond the permissible period and to object to the court’s action. We reject appellant’s theory that the only available avenue of communication was by letter with its attendant delay. The matter was an urgent one and appellant was charged with a criminal offense, albeit a misdemeanor. We see no reason why appellant’s counsel could not have communicated forthwith with the court by telephone or, if it was necessary, forthwith appeared before the judge on Thursday, insisting in either method of communication that the matter be called to trial on Monday, December 14. Such an objection might well have served “ ‘to procure an earlier trial.’ ”
(People
v.
Wilson, supra,
Appellant’s argument that any objection by him would have been useless appears unrealistic when assessed in the light of present day methods of communication and travel and appraised by the great diligence and sense of responsibility which must guide counsel in criminal cases. It also shatters on the inescapable fact that the question as to whether an objection would be useless or not, as well as the broadеr question as to whether there was a waiver, were matters “peculiarly within the knowledge of the judge of the respondent court” who determined these questions of fact adversely to appellant.
(Brewer
v.
Municipal Court, supra,
The judgment is affirmed.
Molinari, J., and Sims, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied January 19, 1966. Peters, J., was of the opinion that the petition should be granted.
Notes
Although the appeal is taken from an
“Order
Denying Petition for Writ of Mandate” (italics added) we are satisfied from an examination of the record that such denial of relief by the trial court is in fact a “final
judgment
entered in . . . [a] special proceeding” (italics added) and therefore appealable. (Code Civ. Proc., §§ 963, 1110.) It would seem that the granting or denial of relief in mandamus proceedings is effectuated by a
judgment
rather than an
order.
(See 3 Witkin, Cal. Procedure (1954) pp. 2560-2563; 32 Cal.Jur.2d pp. 270-290.) Although respondent filed no answer or demurrer below, the matter was submitted on appellant’s petition and the supporting affidavit of appellant’s counsel and findings of fact might not have been necessary to support the denial of the petition, nevertheless “the entry of a judgment is necessary to make it a final decision effectual for any purpose.”
(People
v.
Berger
(1955)
Article I, section 13, in relevant part provides: “In criminal prosecutions, in any court whatever, the pаrty accused shall have the right to a speedy and public trial; ...”
Penal Code, section 686, in relevant part provides: “In a criminal action the defendant is entitled: 1. To a speedy and public trial. ’ ’
Section 1382 read in pertinent part as follows: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information or, in case the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the superior court, within 60 days after suсh mistrial has been declared, after entry of the order granting the new trial, or after the filing of the remittitur in the trial court; ... 3. Regardless of when the complaint is filed, when a defendant in a misdemeanor ease in an inferior court is not brought to trial within 30 days after he is arrested ... or, in ease the cause is to be tried again following a mistrial, an order granting a new trial from which an appeal is not taken, or an appeal from the inferior court, within 30 days after such mistrial has been declared, after entry of the order granting the new trial, or after the remittitur is filed in the trial court or, if the new trial is to be held in the superior court, within 30 days after the judgment on appeal becоmes final; . ,
Seetion 1432 provides that in proceedings in justice courts: "When a change of the place of trial is ordered, the judge must transmit to the judge before whom the trial is to be had all the . . . papers in the cause . . . and upon receipt thereof, the judge to whom they are delivered must proceed with the trial in the same manner as if the proceeding or action had teen originally commenced in his court.” (Italics added.)
In the course of the proceedings in the superior court, the learned trial judge, noting that appellant’s counsel had stipulated to a change of venue observed: "That must have automatically vacated the November 17th date’’ to which appellant’s counsel replied: "Impliedly it probably did, . . .’’
At one point appellant’s counsel stated to the court: “Now, it’s my theory that a new thirty day period started on November 13th when the judge overruled my motion to dismiss and when we stipulated to a change of venue. It is then my argument that having indicated to the court that we would not consent to any further continuances, that a new period of time started to run the same as if this were the first arraignment of a defendant and we had a thirty day period starting to run. ...”
In
State
v.
Levand, supra,
upon defendants’ motion, venue in a misdemeanor case was ordered changed from Converse County to Goshen County. In applying a Wyoming statute prescribing the time for bringing a defendant to trial (before the end of the third term in which the case was pending), the court held that it would not. "consider the time consumed in this case in Converse county . . . [but] we should consider
*286
the ease as though it had been commenced in Goshen county as of the time when the change of venue to that county was completed.” (
The record shows that the order changing venue was made in the Benicia justice court on November 13, 1964. This order operated at once to divest the Benicia court of jurisdiction to proceed further in the case and to vest, jurisdiction in the Vacaville court.
(People
v.
Suesser
(1904)
In a felony ease, a defendant is required to be personally present in court at his arraignment (Pen. Code, § 977), to personally enter Ms plea in open court (Pen. Code, § 1018) and to be personally present at Ms trial (Pen. Code, § 1043).
In a misdemeanor case, a defendant is not required to be personally present at Ms arraignment but "may appear by counsel” (Pen. Code, § 977) or to be personally present at the time Ms plea is entered which "may be made ... by his counsel” (Pen. Code, § 1429). Indeed it is conceivable that he may never attend at any stage of the case since "if he absents himself with full knowledge that a trial is to be or is being had, the trial may proceed in his absence” (Pen. Code, § 1043) and in his absence a verdict may be received (Pen. Code, § 1148) and a judgment pronounced against him (Pen. Code, § 1193, subd. 2).
Said counsel stated that he received the notice on December 9 or 10. We use the date more favorable to appellant.
Penal Code section 1382 in relevant part provides: “If the defendant is not represented by counsel, he shall not be deemed under this section to have consented to the date for his trial unless the court has explained to him his rights under this section and the effect of his consent. ’ ’