¶1I concur. I agree with the majority that tire defendant’s right to a speedy trial was not violated because he waived it in part, and because good cause was established for the continuances to which he did not consent.
¶2Nevertheless in my opinion the provisions of Penal Code section 1381 should not be applied to proceedings in which the offense charged arises out of the defendant’s imprisonment. It must be conceded that the authorities marshalled in the majority opinion sustain the view that section 1381 should be applied in all cases where “a charge is filed against a person during the time such person is serving a sentence in any state prison or county jail of this state . . . .” An analysis of these cases indicates that, with but three exceptions, they involve either offenses committed prior to the imprisonment for which charges were either then pending (see People v. Godlewski (1943) 22 Cal.2d 677, 679 [140 P.2d 381]; and People v. Rowden (1969) 268 Cal.App.2d 868, 870 [74 Cal.Rptr. 448]), or for which charges were subsequently filed (see In re Mugica (1968) 69 Cal.2d 516, 518 [72 Cal.Rptr. 645, 446 P.2d 525]), or offenses committed after imprisonment in which prosecution was not instituted until after what was asserted to be an undue delay (see People v. Aguirre (1960) 181 Cal.App.2d 577, 579 [5 Cal.Rptr. 477]; and People v. Ragsdale (1960) 177 Cal.App.2d 676, 677 [2 Cal.Rptr. 640]), or a failure to arraign the defendant, as re*268quired by Penal Code section 825 for an offense committed while he was on parole, after his parole was revoked and he was returned to the constructive custody of the Department of Corrections (see People v. Goss (1961) 193 Cal.App.2d 720, 722-724 [14 Cal.Rptr. 569]).
¶3People v. Robinson (1968) 266 Cal.App.2d 261 [72 Cal.Rptr. 33] ostensibly is on all fours with the instant case. The offense, escape in violation of Penal Code section 4530, subdivision (b), was connected with his imprisonment, he was charged and arraigned, and the trial occurred more than 90 days after his arraignment. The court in reliance upon the two cases discussed below, as one of two alternative grounds for upholding the conviction against the assertion that the defendant had been denied a speedy trial, stated, “Furthermore, section 1381 of the Penal Code, while affording a defendant the right to be brought to trial within 90 days, conditions such right upon a written request by the defendant. No request was made in the instant case, and there is no showing in the record that either defendant or his attorney was ignorant of the necessity for such request. A. prisoner in the position of defendant must make the demand that the People proceed to trial before he can complain. (Osmulski v. Superior Court (1959) 169 Cal.App.2d 444, 445 .. . .)” (266 Cal.App.2d at pp. 264-265.) In my opinion the weight to be given this statement is diminished by the fact that the court had already noted that the defendant had waived any right to a speedy trial because he had failed to object at any time before going to trial (id:, p. 264), and because in neither Robinsonnor in the case upon which it relies was the question of a distinction between new prison connected offenses and pending charges for other offenses considered.
¶4In Osmulski v. Superior Court (1959) 169 Cal.App.2d 444 [337 P.2d 520] the charge was also escape. In discharging an alternative writ of prohibition, and denying a peremptory writ, the court, without distinguishing between the nature of the charges involved purported to follow People v. Godlewski, supra,and concluded, “It appears by the petition that at the time the charge of escape was made against him he was a prisoner serving a sentence in a state prison. Therefore, the provisions of section 1381 of the Penal Code govern his rights. ... A prisoner in the position of petitioner is entitled to the rights given him under section 1381 and must make the demand that the People proceed to trial before he can complain.” (169 Cal.App.2d at p. 445.)
¶5In People v. Hernandez (1967) 250 Cal.App.2d 842 [58 Cal.Rptr. 835], to which the court also referred in Robinson, the defendant was brought to trial within 52 days after he was arraigned on an indictment for an *269offense committed while he was on parole. The indictment was filed six months and ten days after the offense was committed, at which time he had been arrested and held as a parole violator, and following the dismissal of two successive informations which had been filed for the same offense. Although the defendant was brought to trial within 60 days, as well as within 90 days on the current charge, the court disposed of his contention that he was denied a speedy trial on the theory that he could not raise the point without giving the notice required by section 1381 (250 Cal.App.2d at p. 849). In this proceeding it is unnecessary to consider whether an offense committed on parole should be treated as an offense committed prior to imprisonment for which charges are pending (i.e., if filed prior to actual return to actual or constructive physical custody of the Department of Corrections), or subsequently filed, or if they should be treated as urged below for offenses arising out of the custodial status.
¶6In the current case, as in Robinsonand Osmulski, it is absurd to require a defendant who has been charged and arraigned while in the custody of the Department of Corrections to deliver to the district attorney of the county in which the charge is filed “written notice of the place of his imprisonment or commitment and his desire to be brought to trial upon said charge.” These requirements only make sense when applied to extrinsic charges arising prior to the imprisonment, and perhaps (see above), while free from actual custody, on parole. In such offenses the right to a speedy trial is thwarted for good cause, the defendant’s incarceration. Section 1381 provides a means for bringing the outstanding charge to a conclusion if the defendant so desires. In the pending situation the election to file the charges is presumably made by those responsible for his custody in conjunction with those responsible for prosecution in the jurisdiction in which he was confined and the offense occurred. The time for prosecution of such actions should not be extended by the application of provisions which were designed for the protection of the accused.
¶7In my opinion when an indictment or information is filed against one undergoing a term of imprisonment for an offense arising out of that imprisonment, the provisions of section 1382, subdivision 2, should apply and he should be tried within 60 days after the finding of in the indictment or filing of the information unless good cause to the contrary is shown, or he expressly or impliedly waives time. It is recognized that the defendant is not suffering unwarranted incarceration by the delay, but all of the other reasons for speedy disposition of the proceedings are applicable.
¶8A petition for a rehearing was denied September 1, 1972, and the opinion was modified to read as printed above. Appellant’s petition for a hearing by the Supreme Court was denied October 12, 1972.