People v. Terry

14 Cal.App.3d 1 (1970) 92 Cal. Rptr. 479 THE PEOPLE, Plaintiff and Respondent,

v.

ALBERT ZENO TERRY, Defendant and Appellant.

Docket No. 9692. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

December 16, 1970. [2] COUNSEL

Anders, Adams & Bacon and Robert L. Bacon for Defendant and Appellant.

Evelle J. Younger, District Attorney, Harry Wood and Robert Lederman, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

VASEY, J.

(1) The sole question presented is whether the motion of defendant to dismiss because defendant was not given a speedy trial as defined in Penal Code section 1382 was properly denied.

From the transcript of the docket, it appears that a complaint was filed April 6, 1970, charging defendant with a violation of Vehicle Code section 23102, subdivision (a). The entry of June 19 recites that defendant was "duly arraigned" and "informed of all his constitutional rights and complaint is read to him." The case was continued to July 3, but at whose request or for what reason does not appear.

[3] On June 29, defendant appeared in pro. per. and entered a plea of not guilty. Jury trial was set for August 7. Defendant waived time. On August 7, defendant appeared with counsel and presented a motion for dismissal on the ground defendant had not been advised of his right to a dismissal if not brought to trial within 45 days (defendant was on bail). This motion was denied.

Penal Code section 1382 requires misdemeanor trial within 30 days after arraignment for a defendant in custody and within 45 days after arraignment for one not in custody. It also provides that if a defendant is not represented by counsel, he shall not be deemed to have consented to the date for his trial "unless the court has explained to him his rights under this section and the effect of his consent."