People v. Contrerai

VALLÉE, J.

In a non jury trial defendant was convicted of possessing heroin. He was sentenced to state prison. He appeals from the judgment. His only point is that he was not brought to trial within 60 days after the filing of the information, as required by section 1382 of the Penal Code.

The information ivas filed on July 7, 1958. Defendant was arraigned on July 9, 1958, and his time for plea was continued to July 16. On July 16 time for plea was continued to July 21; and on the latter date, was continued to July 24. On July 24 defendant pleaded not guilty and trial was set for September 18, 1958. On September 18 in department 43 defendant waived a trial by jury and the following stipulation was entered into:

“By stipulation of all counsel the cause is submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, subject to this Court’s rulings, with each side reserving the right to offer additional evidence, and all stipulations entered into at the preliminary hearing be deemed entered into in these proceedings. It is further stipulated that all exhibits received at the preliminary hearing are deemed received in evidence in these proceedings, subject to this Court’s rulings.”

The cause was then transferred to department 47. On the same day in department 47, on motion of defendant, the trial was continued to September 25. The minutes of September 18 say, “Time waived.” On September 25 the trial was continued to October 2, 1958. The minutes of September 25 say, “Time waived.” The minutes of October 2 say, “Trial resumed from September 25, 1958,” and “The Court has read and considered the transcript”; that additional evidence was received, and that defendant was found guilty. Defendant was represented by counsel at all proceedings.

Penal Code, section 1382, provides:

“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

[371]

court within sixty days after the finding of the indictment, or filing of the information. ...” '