People v. Campa

Opinion

STEPHENS, Acting P. J.

Defendant was charged by information with selling, furnishing and giving away heroin, in violation of Health and Safety Code section 11501. The public defender was appointed to represent him, and defendant pleaded not guilty. On January 16, 1968, jury trial was waived. After trial by the court, defendant was found guilty as

[469]

charged. On February 7, 1968, defendant made a motion for a new trial, which was argued and denied. It then appeared to the court that defendant was addicted to, or because of repeated use of narcotics was in imminent danger of becoming addicted to, narcotics. Accordingly, criminal proceedings were adjourned, and Welfare and Institutions Code section 3051 proceedings were ordered commenced. The order also included the directive that if defendant was not committed he was to be returned to the trial department by February 28, 1968, On February 7, defendant also filed his appeal from the order denying his motion for a new trial. The augmented record indicates defendant was committed to the California Rehabilitation Center, and has not been sentenced. At the time he filed his notice of appeal, a denial of a motion for new trial where the defendant has been committed to the Rehabilitation Center constituted an appealable order. (Pen. Code', 1237, subd. 2.)

1

There is no question as to the sufficiency of the evidence to support the conviction; hence, it is not set forth. The primary issue on this appeal is that the arrest was not made until November 15, 1967, though the criminal act allegedly took place on October 10, 1967. The argument is that since the defense was

alibi

and denial of the act, defendant’s rights were violated due to this delay.

Defendant recognizes in his brief that “the Courts have consistently held that the defendant’s rights are not violated even though his arrest is delayed until a month or more after the alleged transaction.” Likewise, the Legislature has provided in Penal Code section 800 that: “An indictment for any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records, must be found, and information filed, or case certified to the superior court, within three years after its commission. . . .” The case of