People v. Ludviksen, Cr. 8128
| Decision Date | 22 June 1970 |
| Docket Number | Cr. 8128 |
| Citation | 87 Cal.Rptr. 781,8 Cal.App.3d 996 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Allan H. LUDVIKSEN, Defendant and Appellant. |
LeRue Grim, San Francisco, for appellant (Under appointment of the Court of Appeal).
Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.
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 appearing on behalf of the district attorneys'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.
The court denied defendant's motion to dismiss the action.
Penal Code, section 1382, provides in pertinent part that 'unless good cause to the contrary is shown,' the court must order an action to be dismissed (pursuant to subdivision 1) when a person has been held to answer for a public offense and an information is not filed against him within 15 days thereafter and (pursuant to subdivision 2) when a defendant is not brought to trial in the superior court within 60 days after the filing of the information. Research discloses only one case where the defendant was timely brought to trial but contended that he was nevertheless entitled to have the judgment of conviction reversed for the prosecution's failure to file the information within 15 days after he was held to answer. In that case, People v. Farrington (1903) 140 Cal. 656, 74 P. 288, the court held that the trial court had properly denied the motion to dismiss because there was evidence that the prosecutor had filed the information one day late as a result of an understandable mistake as to the date on which the defendant had been held to answer.
In the instant case, the record of the August 26 hearing likewise reveals that the late filing of the information was due to an understandable mistake caused by faulty communication between the various members of the district attorney's office who were handling the case at different stages of the proceedings. Since the trial court denied defendant's motion to dismiss the action, it was obviously of the opinion that the prosecution had adequately explained the delay in filing the information.
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 on appeal. (People v. McFarland (1962) 209 Cal.App.2d 772, 776--777, 26 Cal.Rptr. 596.) Further, under California law the right to a speedy trial is not a fundamental right such as the right to counsel, hence 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. (People v. Katzman (1968) 258 Cal.App.2d 777, 789--790, 66 Cal.Rptr. 319.)
In the instant case, defendant is not claiming that he was deprived of a speedy trial. Defendant has failed to demonstrate that the prosecutor did not make an adequate showing of good cause for the three-day delay. Moreover, defendant has likewise made no attempt to demonstrate that the delay was prejudicial to him in any way. His own counsel requested that defendant's initial appearance in superior court be continued to August 5. The information was filed in open court on that date, and defendant has failed to suggest any way in which he would have benefited had the information been filed three days earlier.
Defendant's final contention is that the trial court ought to have excluded from evidence the testimony of the arresting officer relative to certain oral admissions which defendant made to him. Defendant asserts that the admissions in question were not voluntary but were the product of 'delicate coercion' on the part of the arresting officer.
Defendant was arrested at his San Francisco apartment on February 29, 1968, by Officer Midyett of the Belvedere Police Department. Two other suspected participants in the burglary had previously been arrested and had...
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People v. Cave
...of an abuse of discretion (People v. Superior Court (Lerma) (1975)48 Cal.App.3d 1003, 1007, 122 Cal.Rptr. 267; People v. Ludviksen (1970) 8 Cal.App.3d 996, 999, 87 Cal.Rptr. 781). A person serving a term in state prison cannot complain about the denial of a speedy trial because of a post-co......
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People v. McGhee
...Few cases have dealt with violations of this section. In People v. Farrington (1903) 140 Cal. 656, 74 P. 288 and People v. Ludviksen (1970) 8 Cal.App.3d 996, 87 Cal.Rptr. 781, the court found the prosecution had shown good cause for the delay. Thus these cases are clearly However both Peopl......
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People v. Elston, G038010 (Cal. App. 6/25/2008)
...in the premises, absent a showing of any abuse of that discretion, will not be disturbed on appeal. [Citation]" (People v. Ludviksen (1970) 8 Cal.App.3d 996, 999; see also People v. Johnson, supra, 26 Cal.3d at p. While section 1382 is "`supplementary to and a construction of' the state con......
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People v. Elston, G038010 (Cal. App. 2/28/2008)
...The trial court so found in this case and defendant has failed to show its conclusion was an abuse of discretion. (People v. Ludviksen (1970) 8 Cal.App.3d 996, 999 ["what constitutes good cause for the delay of a trial is a matter within the discretion of the trial court and ... its determi......