People v. Mays

HERNDON, J.

Appellant Cecil D. Mays appeals from the judgment of the trial court entered after a nonjury trial wherein he and a codefendant, Victor Chavez Macias, were convicted of selling heroin in violation of section 11501 of the Health and

[800]

Safety Code. Appellant also was found to have suffered two prior felony convictions involving the possession of narcotics. Probation was denied and appellant sentenced to imprisonment for the term prescribed by law. He presents this appeal in propria persona following a finding by this court on August 14,1961, that appointment of counsel to represent him herein would be neither advantageous to appellant nor helpful to the court. He assigns numerous asserted errors as grounds for a reversal of the judgment, and we have fully considered the entire record in relation thereto.

Appellant complains of a denial of due process as the result of the appearance by three different members of the public defender’s office during the course of the proceedings relating to his arraignment and the entry of his plea. However, there is nothing in the record to indicate that appellant ever offered any objections nor does he make the slightest showing that he was in any way prejudiced by the manner in which he was represented in these proceedings. Moreover, a month prior to the date set for the trial, private counsel was substituted for the public defender to represent appellant due to a possible conflict of interest between the defendants, and such private counsel represented appellant in all the proceedings thereafter.

Appellant next alleges that he was deprived of his right to a speedy trial. However, the record fails to show that he or his counsel objected to the trial date or to the one continuance which was granted on the motion of his codefendant. In the absence of a contrary showing, consent will be presumed on appeal.

(People

v.

Taylor,

52 Cal.2d 91, 93 [338 P.2d 337].) Where a defendant neither objects to going to trial, nor makes a motion to dismiss in the trial court under section 1382 of the Penal Code, error may not be asserted in the appellate court because of his failure to receive an earlier trial.