Opinion
BURKE, J.The People’s failure to comply with a pretrial discovery order led to the dismissal of drug charges against petitioner. Two days later, a new complaint was lodged against petitioner containing the same charges. In the interim, however, a witness assertedly favorable to petitioner evidently left the state upon learning of the dismissal and has not been located since. The question arises whether, under these circumstances, petitioner’s inability to call this witness in his defense at his forthcoming trial constitutes a denial of his right to due process of law. A subsidiary question is whether the People’s decision to refile the charges rather than appeal the dismissal order has deprived petitioner of his right to a speedy trial.
We have concluded that the unavailability of petitioner’s witness was not attributable to any .impropriety on the People’s part and that the prosecution acted with reasonable dispatch in attempting to bring petitioner to trial. Accordingly, the instant petition to restrain further proceedings in this case should be denied.
The charge brought against petitioner (Health & Saf. Code, § 11501) is based upon an alleged sale of heroin to David Morrow, a paid police informant. Petitioner was indicted for the offense and a jury trial scheduled *36for June 4, 1973. Petitioner moved for discovery of the names and addresses of all prospective prosecution witnesses and the court so ordered. Although the People disclosed informant Morrow’s name and made him available to petitioner’s counsel for pretrial examination, Morrow’s address was not revealed (evidently because the People feared for his safety). Accordingly, the trial court granted petitioner’s motion to dismiss the action in the interest of justice (Pen. Code, § 1385). Instead of taking an appeal from the dismissal (Pen. Code, § 1238, subd. (a) (8)), the prosecution exercised its statutory right (see Pen. Code, §§ 1387, 1382, subd. 2), and filed a new complaint containing the same charge set forth in the indictment. The new complaint was filed on June 6, two days following the entry of the trial court’s dismissal order.
At the preliminary hearing which followed, informant Morrow testified that he had purchased heroin from petitioner at petitioner’s home on the evening of January 31, 1973. Morrow further testified that a third person, Hal Evans, had been present at petitioner’s home that evening but had temporarily left the house during the actual purchase of heroin from petitioner. It now appears that Evans, having learned of the June 4 dismissal of charges against petitioner, left town and cannot be located. It is the alleged present unavailability of Evans as a defense witness which gives rise to petitioner’s contention that he cannot obtain due process in the forthcoming trial.
1. Due Process of Law
Generally, an accused is not entitled to a dismissal simply because he is unable to produce witnesses assertedly necessary to his defense. (People v. Kirkpatrick, 7 Cal.3d 480, 486 [102 Cal.Rptr. 744, 498 P.2d 992].) The rule is otherwise, however, where it is shown that the prosecution has wrongfully deprived an accused of the opportunity to secure the presence of a material witness. This was made clear in People v. Kiihoa, 53 Cal.2d 748 [3 Cal.Rptr. 1, 349 P.2d 673], in which we held that it was a denial of due process for the People to defer prosecution of the defendant until a police informant who was a material witness had left the jurisdiction.
Petitioner contends that under the rationale of People v. Kiihoa, supra, 53 Cal.2d 748, the filing of a new complaint in the instant case constituted a similar denial of due process. We disagree. The fundamental due process principle underlying Kiihoa is that the prosecution may not deprive an accused of the opportunity to present material evidence -which might prove his innocence. Even if the prosecution’s motives are “praiseworthy,” *37they cannot prevail when they “inevitably result, intentionally or unintentionally, in depriving the defendant of a fair trial.” (Italics added; id. at p. 754.) Significantly Kiihoa involved the unavailability of a police informant.1 As such, the witness was in contact with, and under the control of, the prosecution. Realistically only the prosecution could have assured the witness’ presence at trial and thus fairness required that the People, rather than the defendant, bear the responsibility for maintaining that witness’ availability.2 (See Eleazer v. Superior Court, 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42].)
In contrast, in the instant case, witness Evans was a friend of petitioner and had agreed to testify in his defense. When the charges against petitioner were ordered dismissed, petitioner or his counsel should have realized that the prosecution could either appeal that order3 or refile the charge in a new action.4 Inasmuch as it was petitioner who informed witness Evans of the dismissal, he had ample opportunity to ascertain Evans’ future plans so that he could reach him in the event a trial ultimately were held. Since Evans’ unavailability as a defense witness cannot be said to be the “inevitable” result of the People’s action or omission, it would be unreasonable to hold the People accountable therefor.
*382. Right to Speedy Trial
Petitioner also contends that the People’s decision to refile the charge rather than appeal the dismissal order has deprived him of his right to a speedy trial. His contention, however, is without merit.
It is well established that the 60-day statutory period within which defendant must be brought to trial (Pen. Code, § 1382, subd. 2), begins anew with the filing of the new indictment. (People v. Godlewski, 22 Cal.2d 677, 683 [140 P.2d 381]; People v. Faulkner, supra, 28 Cal.App.3d 384, 395.) In the instant case the People refiled charges against petitioner two days after dismissal of the original proceedings and rearrested him six days later. All delays beyond the applicable 60-day period have been requested by or granted with the consent of petitioner. The People have thus clearly complied with the statutory requirements.
Nevertheless, the prosecution’s statutory right to refile cannot infringe upon petitioner’s constitutional right to a speedy trial. To hold, however, that petitioner had been denied a speedy trial as a result of prosecutorial delay in this case would require us to find that the prejudicial effect of the delay outweighed any justification for it. (Jones v. Superior Court, 3 Cal. 3d 734, 740 [91 Cal.Rptr. 578, 478 P.2d 10]; see Sykes v. Superior Court, 9 Cal.3d 83 [106 Cal.Rptr. 786, 507 P.2d 90].)5 Of course, in performing this balancing test, we consider and weigh only that “prejudice” for which petitioner was not responsible. As noted above, petitioner in the instant case was in contact with his friend, witness Evans, and yet failed to take steps to assure that Evans would remain available to testify. If petitioner’s negligence is a significant factor in causing the alleged prejudice, he should not be entitled to assert such prejudice as a ground for speedy trial relief.
The petition for a writ of prohibition is denied.
Wright, C. J., McComb, J., and Clark, J., concurred.)The instant case also involves a police informant, Morrow, and, as stated above, the nondisclosure of the latter’s address led to dismissal of the original indictment. Petitioner does not here contend, however, that Morrow will be unavailable as a witness in the forthcoming trial or that the People’s refusal to furnish Morrow’s address itself violated due process.
Similarly, Harris v. Superior Court, 35 Cal.App.3d 24 [110 Cal.Rptr. 400], also relied upon by petitioner, is not controlling. In that case defendant’s conviction was reversed on the ground that the trial court had erred in refusing to compel disclosure of the identity of a police informant who was a material witness. By the time the proceedings were reinitiated the informant had disappeared. The court held that further prosecution would constitute a denial of due process, reasoning that “the original refusal of the People to disclose the name of the informant coupled with circumstances beyond control of petitioner has deprived petitioner of information already determined essential to her having a fair trial.” (Italics added; id., at p. 27.) Harris, like People v. Kiihoa, supra, 53 Cal.2d 748, deals only with the situation in which a police informant who is a material witness becomes unavailable. The common sense rationale of Kiihoa and Harris, that the People must bear the responsibility of producing their own agents and informants, is inapplicable where, as in the instant case, the defendant has ample opportunity to assure his witness’ presence at trial.
The order of dismissal was an appealable order (Pen. Code, § 1238, subd. (a)(8)), and the People would have had 60 days within which to file the notice of appeal (rule 2(a), and rule 31(a), Cal. Rules of Court).
An order for the dismissal of a felony action made before jeopardy has attached is not a bar to further prosecution (Pen. Code, § 1387), and upon refiling the 60-day time period within which to bring defendant to trial (Pen. Code, § 1382, subd. 2), starts anew (People v. Faulkner, 28 Cal.App.3d 384, 395 [104 Cal.Rptr. 625]).
Our conclusion remains the same if we employ the “ad hoc balancing test” of Barkery. Wingo, 407 U.S. 514, 530 [33 L.Ed.2d 101, 116-117, 92 S.Ct. 2182], which requires consideration of such factors as the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant in appraising a claimed denial of his right to a speedy trial under the Sixth Amendment to the United States Constitution. Here, as noted above, the delay was minimal and, in any event, whatever prejudice defendant may have suffered was primarily attributable to his own neglect.