People v. Session

California Court of Appeal Oct 27, 1960 No. Crim. 3733Published

Before: Shoemaker

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Holding. The court held that a defendant waives the right to a speedy trial by failing to object to postponements at the trial level, and that questions to which objections were sustained do not warrant reversal.

Issues

Whether the defendant's right to a speedy trial under the California Constitution and Penal Code section 1382 was violated.
Whether Penal Code section 1050 requires dismissal for failure to set a trial date within 30 days of a plea.
Whether the prosecutor's questions prejudiced the defendant's right to a fair trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under such circumstances the accused’s rights to a speedy trial and to dismissal are waived, and error may not be predicated in an appellate court on failure of the accused to get an earlier trial.”

“The mere asking of a question to which an objection is sustained does not warrant reversal.”

SHOEMAKER, J.

This is an appeal by the defendant, Tommy Session, from a judgment finding him guilty on three counts of violating section 11500 of the Health and Safety Code.

The evidence discloses that on March 3, 1959, narcotics agent Ojeda accompanied by an informant, Lucy Terry, drove to a house in Seaside where they met defendant. The defendant placed two bindles in the hand of the informant while she was seated in the ear with the agent in front of the house. The bindles, which were placed in her open hand, were constantly within the sight of the agent; he gave defendant $10 and took the bindles from the informant, keeping them in his hand until he returned to his motel where he sealed them in an envelope and turned them over to his partner, agent McHugh.

On March 4, Ojeda returned to the same house accompanied by the informant and a friend of hers. Defendant again placed a paper bindle in the hand of the informant and the agent gave him $10. Again the agent returned to the motel where he sealed the bindle in an envelope and turned it over to his partner. The contents of the envelopes proved to be a narcotic, Amidone.

On April 22, 1959, agent Ojeda and local police officers, having a warrant, searched the defendant’s home. They discovered a jar of marijuana in defendant’s bathroom.

On May 13, 1959, an information in three counts was filed against the defendant in Monterey Superior Court. The first two counts dealt with the sale of Amidone on the third and

[686]

fourth of March, the third count with possession of marijuana on April 22. On May 22, 1959, arraignment was continued until May 26, 1959, on which date the appellant pleaded not guilty to each count. Trial by jury was set for July 1, 1959, but on that day the court continued the matter on its own motion to August 17, 1959. Trial commenced on August 19, 1959, and concluded on August 20, 1959, with a jury finding of guilty as charged.

The first contention of defendant is that his right to a speedy trial as guaranteed by the California Constitution, article I, section 13, was violated by the proceedings below. This is a self-executing provision declaring a fundamental right of an accused to a prompt trial.

People v. Session

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SHOEMAKER, J.

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