People v. Smith

FOX, J. Appellant’s sole ground of appeal is that the court erred in denying his motion to dismiss because his case was not brought to trial within 60 days after filing the information, as provided in Penal Code, section 1382, subdivision 2.

An information charging appellant and defendants Mitchell and Lynch with three counts of robbery was filed on September 7, 1956. The case was initially set for trial on the following October 25th. On that date the trial was continued, with appellant’s consent, to Monday, November 5th, because of a congested court calendar. When the case was called for trial on the latter date, the People and counsel for the other [86]defendants indicated they were ready. Mr. Gordon, however, representing appellant, reminded the judge that he was engaged in trial of another case in that department, and inquired whether this case could trail. At that point Mr. Rosen, representing defendant Lynch, stated that he understood the ease then on trial in which Mr. Gordon was counsel, would last “anyway until Thursday.” He advised the court that he was due to go to trial in a civil case on Wednesday, and that if this criminal ease could not go to trial on that day (November 5th), he would appreciate its going over to some reasonable future date. Mr. Gordon then informed the court that the defendants were in custody and wanted to go to trial, and that he understood the People had a witness there from San Diego. The deputy district attorney confirmed the fact that the People had present an out-of-town witness. Mr. Gordon then stated, “I think that in deference to both the witnesses for the People and to the State, and inasmuch as this is a criminal ease, it should take priority over any civil sitting [sic]. I’d prefer that this matter trail until we finish this case here in this courtroom.” After some further colloquy between counsel for the other defendants and the court in an effort to find a satisfactory date, the case was continued to November 20th.

When the case was called for trial on November 20th appellant moved to dismiss on the ground that, over his objection, he had not been brought to trial within 60 days after the filing of the information as provided by Penal Code, section 1382, subdivision 2.* The motion was denied. Having been convicted, he appeals from both the judgment and the order denying his motion for a new trial.

The record reveals that when the parties were in court on Monday, November 5th, that was the 59th day after the filing of the information. The résumé of what transpired on that occasion discloses that appellant was not ready to proceed because his attorney was engaged in trying a case in that very court. As a consequence, his attorney suggested that the case trail the one on trial. Comment then was made by Mr. Rosen that he understood the case that appellant’s coun