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 *1017and 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 this burden in this case.
My colleagues attempt to avoid this conclusion by judicial amendment of the statute. They hold that where a continuance is generally requested by a defendant, a trial setting by the court, on its own, beyond the prescribed period does not require consent by the defendant. I find nothing in the statute to support this strange conclusion.
The petition of the plaintiff and respondent for a hearing by the Supreme Court was denied July 21, 1971.