People v. Ludviksen

California Court of Appeal Jun 22, 1970 No. Crim. 8128Published

Before: Shoemaker

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Holding. The court held that the trial court did not abuse its discretion in denying a motion to dismiss for a late-filed information where the delay was caused by an understandable mistake and resulted in no prejudice to the defendant, and that the defendant's incriminating statements were voluntary and admissible.

Issues

Whether the trial court erred in denying a motion to dismiss an information filed three days past the statutory 15-day limit.
Whether the defendant's incriminating statements were involuntary and the product of police coercion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well established that what constitutes good cause for the delay of a trial is a matter within the discretion of the trial court and that its determination in the premises, absent a showing of any abuse of that discretion, will not be disturbed”

“an improper delay, even though violative of Penal Code, section 1382, will not justify a reversal of the judgment in the absence of a showing of prejudice resulting from the delay.”

“Under these circumstances, defendant’s incriminating statement to Midyett was voluntary rather than coerced, the same was admissible and the court’s ruling was proper.”

Opinion

SHOEMAKER, P. J.

Defendant Allan Ludviksen was tried by a jury and found guilty of first degree burglary. The court suspended the imposition of sentence and placed defendant on supervised probation for a period of one year. Defendant appeals.

Defendant does not challenge the sufficiency of the evidence. The facts will be set forth only insofar as they are relevant to defendant’s arguments on appeal.

Defendant’s first contention is that the trial court erred in denying his motion to dismiss the action, pursuant to Penal Code, section 1382, subdivision 1, on the ground that the information was not filed within 15 days after defendant was held to answer in the municipal court.

According to the record, defendant was held to answer in the municipal court on July 18, 1968. The district attorney’s office was represented by Mr. Anthony, and the court asked him when defendant was scheduled to appear in the superior court. Anthony replied that defendant was directed to appear on July 29. Defendant’s counsel then advised the court that he had another trial starting on July 29 and asked that the superior court hearing be continued. He indicated that he had no objection to the superior court hearing being held more than 15 days after defendant was held to answer and stated that the prosecutor could still file the information within the 15-day period. The court then ordered that defendant appear in the superior court on August 5 and stated that the information might be filed on July 29. Defense counsel agreed to the August 5 hearing date.

On August 5, defendant and his counsel appeared in the superior court. The district attorney’s office was represented by Mr. Thomas, who filed the information in open court. Defendant then moved to dismiss the action on the ground that the information had been filed 18 days, rather than 15 days, after defendant was held to answer.

On August 26, the motion to dismiss came on for hearing, with Mr. Birkie

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appearing on behalf of the district attorney’s office. Birkie advised the court that there had been a misunderstanding in his office as to the date on which the information was required to be filed. He explained that following the July 18 hearing in municipal court, he had asked Mr. Anthony when the prosecution was to appear and file the information. Anthony told him August 5, and Birkie marked that date on his calendar. He did not realize that the information was required to be filed in advance of the August 5 hearing date.

People v. Ludviksen

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SHOEMAKER, P. J.

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