People v. Cochran

WOOD (Parker), J.

In a trial by jury, defendant was convicted of attempted burglary. He appeals from the judgment.

He asserts that the judgment should be reversed because: (1) the court did not set the case for trial within 30 days after the entry of his plea; and (2) he was not brought to trial within 60 days after the filing of the information. He also asserts that the evidence was not sufficient to support the judgment.

The information was filed July 11, 1957. Defendant’s plea was entered August 1, 1957, and at that time the case was set for trial on August 16, 1957. On said August 16, the case was reset for trial on September 19, 1957. The trial was commenced on said September 19 and was concluded on September 24, 1957.

It thus appears that the case was first set for trial on a date (August 16) which was within 15 days after defendant’s plea; and that on August 16, it was reset for a date which was 49 days after the plea. Section 1050 of the Penal Code provides, in part: “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. ...” That section does not provide that the case shall be dismissed if it is not set for trial within the 30-day period. The section is directory, and a mere failure to comply with its terms does not require a reversal of a judgment.

(People

v.

Tenedor,

107 Cal.App.2d 581, 583 [237 P.2d 679].)

[735]

It also appears that the trial was not commenced until 70 days after the information was filed. Section 1382 of the Penal Code provides, in part: “The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within sixty days after the finding of the indictment, or filing of the information . . . .” The minutes of August 16, in Department 41 of the superior court, state in part: “Defendant with counsel, Deputy Public Defender Fred Kilbride, present. Reset for trial on September 19, 1957, 9 A M in Department 42. Statutory time for trial waived.” Defendant asserts, however, in his brief on appeal, that said deputy public defender was not authorized by him to waive statutory time; defendant did not know that said deputy was appearing for him at the time of the alleged waiver; and defendant was not aware that the time had been waived until after the conclusion of the trial. (It appears that on August 16, immediately prior to the proceeding in Department 41, the ease was on the calendar in Department 46 and defendant was present in Department 46 where the public defender was appointed as his counsel, and at that time Deputy Public Defender Brskine was present. After that appointment the ease was transferred to Department 41 for resetting. In Department 41, Deputy Public Defender Kilbride was present—instead of Mr. Brskine who had been present in Department 46.) Defendant’s assertion, in his brief, to the effect that he did not authorize the waiver, and did not know of it, relates to purported matters which are outside the record. In