People v. Bradford

WOOD (Fred B.), J.

Convicted on two counts of violating section 11500 of the Health and Safety Code (sale of heroin) on the 5th and 12th, respectively, of June, 1953, defendant has appealed.

Defendant claims that the action should have been dismissed by the trial court for failure to bring to trial within 60 days of the filing of the information, as provided in subdivision 2 of section 1382 of the Penal Code.

*

A motion to that effect was made and denied on June 7, 1954. Sixty days had elapsed, the information having been filed March 4 of that year. But, as the record shows, continuances from March 8 to March 10 and to April 7 were made “with consent of counsel”; thereafter, from April 7 to May 7, to May 26, to June 7, “with consent of respective counsel.” The continuances from March 8 through March 10 to April 7 were presumably with consent of counsel for each party, because the minutes show that both counsel were present upon each of those occasions. Even if it be not so presumed, the period from March 4 to April 7 was well within the 60 days, and the remainder of the period was definitely covered by defendant’s consent. “ The defendant’s consent to the postponement of his trial is equivalent to a postponement on his application and is sufficient cause for the delay.

(Ray

v.

Superior Court,

208 Cal. 357 [281 P. 391];

People

v.

Santos,

134 Cal.App. 736, 744 [26 P.2d 522].) ”

(In re Lopez,

39 Cal.2d 118, 120 [245 P.2d 1].) Consent of counsel is, of course, consent of the party. (See

People

v.

Santos, supra,

at p. 744.) It necessarily follows that the dismissal statute here invoked did not come into play. There was no further postponement. The trial commenced and was completed on June 7.

Defendant also cites section 1050 of the Penal Code which reads in part as follows: “The court shall set all criminal cases for trial for a date not later than thirty (30) days after the date of entry of the plea of the defendant. No