*1 judgments them in order should be reversed as to may have fair trial on the merits. We held Lyons, 329], that “It is axiomatic 47 Cal.2d impartial that when an accused is that fair and denied guaranteed by procedure to a law, such amounts denial process (Powell [1932], due of law Alabama 287 U.S. 527]).” 77 L.Ed. 84 A.L.R. S.Ct. 3. Since there is no which tends evidence to connect defend- Meyer Osslo, McFaden,
ants Hazel with the actual assault, the trial court should be directed dismiss as to these charge likely defendants of assault means of force produce great bodily injury.
Gibson, J.,C. and Traynor, J., concurred. Appellants’ petition rehearing April 23, for a was denied Gibson, J., Carter, J., J., C. Traynor, were of opinion petition granted. should be 27, 1958.] No. 6108. In Bank. Mar.
[Crim. THE PEOPLE, Respondent, v. ELMER TAHTINEN,
Appellant.
.130 pro. per., Garber, Albert Tahtinen, Elmer and C. under by Supreme
appointment Court, Appellant. for Attorney Brown, General, Linn, Edmund Clarence A. G. Attorney General, Assistant William E. James William Attorneys Respondent. Bennett, Deputy General, M. for TRAYNOR, court, sitting jury J. The trial without felony guilty of found defendant violation section 11500 Safety It also found that he was the Health and Code. previously felony convicted of a violation of federal narcotics and a of section 11500 laws misdemeanor violation Safety imprisonment Health him to Code and sentenced penitentiary prescribed for the term law. in the state appeals. (See Code, 11712.) Defendant Health & Saf. § deprived was It is at the outset that defendant contended (See I, §13; Const., art. to a Cal. trial. 1382.) The information was 681a, 686, 1050, Code, Pen. §§ 1, On December 1955 defendant November 1955. filed ap- arraignment. public defender appeared for was represent him, was continued to pointed and the case by his plea. On December December (Pen. 995), Code, the information counsel moved to set aside § disposition of motion until and the case was continued motion court denied the December December 21. On to pleaded guilty Defendant information. set aside the January ,and prior convictions, trial was set for denied postponed until Febru- January 26, trial was 26, 1956. On February postponed ary February was until trial 10. On postponed February until February 14, 15. On trial 14. February postponed February until 15, trial was On 17. On On February postponed until February 16, trial was February 20. postponed until On "February 17, ad- his former denial and February 20, withdrew On Febru- prior convictions, and trial commenced. mitted unable reach jury that it was ary announced 21, the *4 and continued the mistrial verdict, the .court declared and February 24 trial was reset for February 24. On case to jury and 28, waived trial defendant On March 28. March by on the stipulated the ease be decided counsel his preliminary hearing other and such the produced at evidence continued might Trial was testimony adduce. either side as April again April 20, continued trial was to,April 20. On.
131 April completed, On the court found 23. guilty charged.
defendant as provides: court 1050 of the Penal Code “The Section shall all criminal for a date not later set cases for trial days plea thirty entry than of (30) after date of the granted No continuance of the trial shall be defendant. except upon proof upon open court, affirmative reasonable notice, justice require that the . ends continuance. . . given precedence Criminal eases shall be all over civil matters proceedings. any If hear all criminal court is unable to (30) pending thirty days cases it before within after the respective their it must imme pleas, defendants have entered diately notify the Chairman of the Judicial Council.” Section provides(cid:127). good 1382 of court, the Penal “The Code unless contrary cause to the shown, must the action to be order following defendant, dismissed in the 2. If a whose cases: ... postponed upon application, trial has not been is not brought superior days to trial in sixty court within after . .. filing settled, however, It is well information. ...” right that the constitutional to a trial and fore going statutory requirements may (Ray Supe be waived. v. Court, Echols, rior 208 391]; People Cal. 357 P. v. 125 [281 Cal.App.2d 810, 818 595].) P.2d [271 upon application The record does not disclose whose plea disposition for continuances and for motion set aside the granted. information were Since were benefit, however, they fairly chargeable defendant’s are to him. Trial January 26, set more than 30 entry plea after of defendant’s on December 21. appears, It
therefore, complied that section 1050 was not with. Since represented by defendant was object counsel, however, and did not set, date he waived his to have the trial set (Ray Superior for an Court, earlier date. supra, 208 Cal. 357, 358; Bradford, Cal.App.2d 130 606, 607- 561].) P.2d public requested delay defender from Janu ary February 26 to 10 because crowded calendar. The court asked whether, under the circumstances, he waived trial an earlier date. Defendant answered, “Yes.” Thus delay thereby consented to the waived any right February (In to be tried before Lopez, re 1].) By consenting beyond to trial day on a date the
132 right period, however, a not waive to defendant does the thereafter, requirement trial he nor does waive the delay justified by good showing be of further cause therefor. (In 120.) Lopez, supra, re 39 at Cal.2d Defendant con February postponements from tends that the 10 to several February justified. 20 were not The court’s minutes disclose granted of postponements that each of because the these ‘‘ ” congested Lopez, supra, of In re condition the calendar. In 39 at we that “where the condition held proceed” permit good trial court’s business would not the to justified. of cause is shown and continuance is The burden upon however, showing condition, this is the the existence of prosecution Cal.App.2d 816), (People Echols, supra, at v. 125 prosecution to before the has failed the record us that the sustain that The notation case burden. minute “owing congested of is to condition continued trial establishing pro trial not falls could calendar” short Angeles Superior department any Court Los ceed (Herrick Court, Cal.App.2d 804, County. Municipal 151 v. Echols, People cited; v. cases there 807 P.2d 264] 1050.) Cal.App.2d 816-817; Code, supra, Pen. Since 125 § object postponements or however, these defendant, not to did delay presumed. is action, consent to the to move (R dismiss 357, 358.) Superior Court, supra, ay 208 Cal. v. February 1956, the People from 60 bring time. mistrial, to trial second date of the to (People Angelopoulos, Cal.App.2d 543 preliminary hear transcript 873].) March On evidence, trial commenced. and the ing was into introduced good cause. grounded on be had to Further continuances that the (Pen. 1050.) discloses The record Code, § unpre People’s owing proceed not on March 28 did next April the earliest date paredness. Apparently that date. court, and trial was available to the continued.to as “satisfac accepted public the continuance defender The tory.” de waived continuance assent to the His counsel’s supra, Court, Superior (Ray complain. fendant’s 357, 358-359.) 208 Cal. respect April
With continuance from to the 20 to reporter’s transcript following April 23, the reveals the con versation : attorney] Honor, I : Your think [district “Mb. Jackson already ready pro- I have indicated are necessary here, at this time because a witness is not ceed Sergeant Officer Vega, Berteaux and his fellow officer, on I vacation. heard from Officer ago, Berteaux a short time it will be about 40 it, minutes before can make and I any objection believe counsel would not have to a continuance for one week. *6 Honor, may say something? Defendant: Your I I “The thought I a quick was entitled to and I have trial. in jail
been for five months and twelve already. : jail Court You have been in five months and twelve “The days. long That a question time. There is no about it. : Your if Honor, the on defendant insists “Mr. Jackson going to trial here today, we can wait for the officer to be here. continuing Monday Court: How about until it at “The
1:30? [public I think that more would be defender]: “Mr. Brill your
satisfactory, Honor. you : agreeable Court Will that be with ? “The [defendant] guess.” It be, Defendant: will have to I “The This insisted, conversation reveals that had defendant proceeded April would have on Thus, consented, even though reluctantly, to the continuance. incriminating The most evidence introducéd packages containing two capsules of heroin taken from defendant’s automobile at the time his arrest and capsule pocket. another of heroin taken from his Defendant contends that this evidence should have been excluded as the product of an unlawful search. police separately persons The nar- arrested three cotics offenses, whom, each of at different times places, and police they
informed had obtained narcotics from one Joe Hernandes at his home at Bast 111th Street. On 8, 1955, assigned November two officers to the narcotics detail vicinity they went to the of Hernandes’ residence. As drove past house, sitting the officers saw defendant a 1941 parked They Buick automobile across the street. knew The officers drove around the Hernandes. block, gone. and when returned defendant was The patrol They officers continued to the area. observed defend- traveling ant south Main 111th on Street. He turned left on Street, parked on street, the south side of a U-turn, made parked north side, and then on the across the street from Hernandes’ house. Defendant remained in his automobile approximately an Her- half hour and then walked towards disappeared alley an
nandes’ house. He into next to the driveway. house, which Hernandes used a After 10 or as automobile, minutes defendant returned to drove 111th, right turned on corner of Main Street and Main and right Street, 110th proceeded to 110th turned on and north Street, San Pedro drove east to San Pedro turned on proceeded Place, along 111th Place and south 111th drove alley just parked east of the end of the that he had passenger formerly opened He the car door on the entered. ground side, the base of tree reached towards at object. away. appeared pick up Defendant drove some then miles, him a of one to three The officers followed distance stopped ap- light, red the officers when defendant proached automobile, identified themselves and arrested suspicion possessing A him narcotics. search packages two heroin. Defendant automobile disclosed nearby single gas station and was taken to searched. pocket. capsule found in his The officers had of heroin.was they have a warrant warrant, nor did de- no search fendant’s arrest. the officers arrested him
Defendant contends *7 to that he had committed reasonable cause believe without felony (Pen. Code, 836, 3), that therefore the subd. § illegal. This contention to arrest search incident The information obtained from the three be sustained. cannot gave cause previously arrested the officers reasonable persons being by sold Hernandes at his that narcotics were to believe vicinity in the residence, defendant’s furtive conduct gave to officers reasonable cause be house of Hernandes’ purchased narcotics and had them lieve defendant distinguishes present case possession. in This conduct his Cal.App.2d 81], 600 People Schraier, 141 P.2d from v. [297 merely leaving a under house that had been which held People justify arrest. v. is sufficient not surveillance People Simon, 528], v. 45 P.2d 640 Brown, 45 Cal.2d [290 Ning Yee, People 145 531], v. Yet Cal. 645 P.2d [290 People Harvey, 142 Cal. v. 616], P.2d App.2d 513 [302 States, 310], v. and Hernandez United P.2d 728 App.2d 17 [299 distinguishable appellant’s brief are 373, in F.2d cited grounds. like by brief in made contentions were Other repre appointed counsel to persona this court propria before not re- that since he was He contends sent him.
135 arraigned prior not mistrial, after the admit the con- did authority purposes of no re- victions for retrial. He cites rearraignment quiring mistrial have after and we discovered perceive any necessity logical practical Nor do we or none. procedure. plainly for such a The record discloses that de- prior convictions, fendant admitted the and section 1025 provides by that, the Penal unless withdrawn consent Code subsequent court, such in all admission is conclusive proceedings. prior
Defendant’s contention conviction of a misdemeanor violation of section 11500 of the Health and Safety being Code, charged not a felony, should not have been (Health in the information is likewise & without merit. Saf. People Code, 11712; Burke, see v. 47 Cal.2d § 241].) preliminary hearing at the Neither nor at the trial arresting identify by They did officers name. simply him as “the defendant.” referred contends that there Defendant is, therefore, no evidence that he is the person abundantly who the crime. It committed clear from person by the record that defendant is the referred to witnesses. Lastly, defendant that he contends was denied effec by
tive assistance counsel that, virtue the fact after the mistrial, when the court retrial set for March 28, de present. fendant’s counsel was not The record does dis close the reason for Nothing counsel’s absence. occurred on setting this other that occasion of a date for retrial. The (see date set was well within after the mistrial Angelopoulos, supra, Cal.App.2d 543), and defend suggest injured by ant does not how he was the absence of (People Rice, counsel. Moreover, 221-222 851].) Cal. P. represented defendant was counsel at the re trial, complained and the now brought error of was never the attention of the trial court. judgment is affirmed. Gibson, J., Shenk, J., Schauer, J., C. J., Spence, McComb, J., concurred. *8 J., CARTER, Dissenting. agree I donot holding with the majority arresting that officers had reasonable
cause to believe that guilty defendant was of a crime that the search of his automobile was legal, and therefore against heroin therein in found was admissible evidence him. place In than the first the officershad no reason to be more
merely suspicious
selling drugs,
that
was
near
Hernandes
parked
had
home
had
his
The officers
whose
arrested three
defendant
car.
separate
persons
occasions who had told
they
drugs from
them
had obtained the
Hernandes at
they
appear
It
not
for
that
home.
does
what
were arrested
or
possession
they
in narcotics.
or dealt
Secondly, the
no
whatsoever to believe
officers had
reason
committing
They
nothing
that
was
a crime.
knew
defendant
they
him until
drove
Hernandes’ house and saw de-
certainly
parked
in a
across the
That
fendant
car
street.
grounds
committing
gave them
to believe he was
a crime
no
selling
Next,
if
Hernandes
narcotics.
even we assume
was
got
alley near
out of his ear and went into the
defendant
Hernandes’ home.
gives
grounds
to no
conduct
rise
Such
many
of a crime. There are
belief of the commission
may
wholly
why
gone
alley
have
into the
incon-
reasons
he
theory
that he had launched on
course of
sistent with
away in his
Later, when
drove
conduct.
defendant
criminal
stopped
car,
time and
and reached toward
car
ground,
picking
he was
officers had no reason
believe
many
up
There
causes for
are likewise
reasonable
narcotics.
criminality.
say that
stopping having no
with
To
connection
’
gone
appeared
house
had first
to Hernandes
it
buy
arrangements to
some narcotics and later
made
and-
pure speculation.
going
get
If
up is
he were
picked them
gotten them when he went down the
narcotics would have
he
any police
apparently
surveil-
he
was unaware
alley, since
many
assumptions
too
that must be made are
lance. The
great.
must
that he went to Hernandes’
It
be assumed
too
merely
there;
was
that Hernandes
because he
near
house
up
picked
narcotics from
selling narcotics; and
he
was
although
he
tree
it was
known whether
base of the
the
picked
majority opinion
he
act-
up anything.
states was
nothing to show
ing in a
manner but there
furtive
than
furtively
skulking. There is more here
no
acting
or
52],
Martin,