People v. Newville, Cr. 4265

CourtCalifornia Court of Appeals
Writing for the CourtAGEE
Citation220 Cal.App.2d 267,33 Cal.Rptr. 816
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Charles NEWVILLE, Defendant and Appellant.
Decision Date17 September 1963
Docket NumberCr. 4265

Page 816

33 Cal.Rptr. 816
220 Cal.App.2d 267
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Charles NEWVILLE, Defendant and Appellant.
Cr. 4265.
District Court of Appeal, First District, Division 2, California.
Sept. 17, 1963.
Rehearing Denied Oct. 1, 1963.
Hearing Denied Nov. 13, 1963.

Page 817

[220 Cal.App.2d 268] Katherine L. Dealey, San Jose, under appointment of the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., of the State of California, Albert W. Harris, Jr., Edward P. O'Brien, [220 Cal.App.2d 269] Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Justice.

Defendant appeals from a judgment of conviction of three violations of section 288 of the Penal Code (lewd and lascivious conduct). The first question is one of pleading.

On June 22, 1962, an information was filed charging appellant with the commission of the act denounced by section 288a of the Penal Code (oral copulation) with a boy whose first name is Donald.

On July 13, 1962, an amended information was filed which added a second count charging appellant with a violation of section 288 of the Penal Code upon the same boy. Appellant was duly arraigned and July 18, 1962 was fixed as the date for the reception of his plea to this amended information.

On July 17, 1962, the Grand Jury returned an indictment charging appellant with two violations of section 288 of the Penal Code, count one involving a boy named Ronald, and count two involving a boy named Coleman.

On July 18, 1962, appellant was arraigned upon the indictment. Thereafter, but on the same date, the minutes state that the following occurred: 'The District Attorney * * * now presents an amended information and indictment charging Defendant with the offense of a violation of Sections 288a and 288 of the Penal Code of the State of California on the amended information and two counts of a violation of Section 288 of the Penal Code of the State of California on the indictment. Upon order of Court the Clerk files the amended information and indictment in Court.' The appellant was thereupon arraigned on this 'Indictment and Amended Information' and July 25, 1962, was fixed as the date for the reception of his plea thereto.

Respondent does not offer any explanation as to why the indictment and the amended information were consolidated into one pleading. The latter contains the identical language of the two accusatory pleadings which it replaces and no more. Even the titles identify the counts so as to distinguish between the indictment and the amended information. The same result would have obtained if the clerk of the court had merely stapled the indictment and the amended information together.

As appellant states, 'it should be pointed out that, on July 18, 1962, the people had an amended information filed [220 Cal.App.2d 270] July 13, 1962, which was properly supported by preliminary examination and filed, and that, on July 18, 1962, the people also had an indictment filed July 17, 1962, which was properly supported by a grand jury investigation and filed.'

Appellant does not question that the court has the right to consolidate two actions for trial where, as here, the two accusatory pleadings charge offenses of the same class of crimes. (E. g., People v. Bittick, 177 Cal.App.2d 479, 482, 2 Cal.Rptr. 378.) This is so even though the accusatory pleadings consist of an indictment and an information. (People v. Diaz, 206 Cal.App.2d 651, 664, 24 Cal.Rptr. 367.)

Appellant's contention is that 'there is no provision under the law of this state for a pleading, [such as an] 'Indictment and Amended Information,' as was filed in the case on July 18, 1962.' (Emphasis ours.)

Page 818

Respondent relies upon section 954 of the Penal Code, which provides in part as follows: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.' (Emphasis added.)

We have not been able to find any appellate court decision which considers the propriety of consolidating the pleadings in two actions being consolidated for trial. However, it would appear that sections 960 and 1404 of the Penal Code are also applicable, at least in the present situation.

Section 960 provides as follows: 'No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.' (See People v. Howes (1950), 99 Cal.App.2d 808, 816, 222 P.2d 969; People v. Leiva (1955), 134 Cal.App.2d 100, 103, 285 P.2d 46; People v. Massey (1957), 151 Cal.App.2d 623, 649, 312 P.2d 365.

Section 1404 provides as follows: 'Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.'

[220 Cal.App.2d 271] In his closing brief, appellant attempts to show that he was prejudiced by the consolidation of the two accusatory pleadings. He first points out that he was entitled to be tried on the charge contained in the information within sixty days after its filing. (Pen.Code, § 1382.)

When defendant refused to waive this time requirement, the court set both actions, which had been consolidated, for trial on August 15, 1962. Appellant's counsel stated that this date was satisfactory as to the trial of the charges in the amended information but that she desired more time to prepare for the trial of the charges contained in the indictment. The court nevertheless stayed with the August 15 date for the trial of both actions.

Appellant's argument seems to be that, while the sixty-day period as to the information would expire on or about August 22, 1962, such period would not expire as to the indictment until on or about September 17, 1962, and that he would have been entitled to a trial date on or shortly prior to this latter date on the charges contained in the indictment if it had not been for the consolidation.

There is nothing in the statute (Pen.Code, § 1382) that gives a defendant the right to have his trial delayed until just before the sixty-day period expires. He has a right to a speedy trial and the statute provides in effect that a trial held more than sixty days after the finding of the indictment or the filing of the information is not a speedy trial.

Here, appellant refused to waive this time provision and insisted on going to trial within the sixty-day period as to the information. Since the two actions had been consolidated for trial, it was necessary to give the same date to the trial on the indictment also.

It is true that appellant's counsel advised the court that she was 'going out...

To continue reading

Request your trial
12 practice notes
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • April 19, 1978
    ...been consistently so construed. People v. Cavanaugh, 69 Cal.2d 262, 266-267, 70 Cal.Rptr. 438, 444 P.2d 110 (1968). People v. Newville, 220 Cal.App.2d 267, 274-275, 33 Cal.Rptr. 816 (1963); State v. Lesco, 194 Kan. 555, 560, 400 P.2d 695, cert. denied, 382 U.S. 1015, 86 S.Ct. 627, 15 L.Ed.2......
  • State v. Etheridge, No. 39700
    • United States
    • United States State Supreme Court of Washington
    • July 9, 1968
    ...of the court that the witnesses are material. The mere assertion that witnesses are material is insufficient. People v. Newville, 220 Cal.App.2d 267, 33 Cal.Rptr. 816 (1963); People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473 (1966), cert. denied, 389 U.S. 906, 19 L.Ed.2d 223, 88 S.Ct. 222 (1967......
  • People v. Crovedi, Cr. 172
    • United States
    • California Court of Appeals
    • March 3, 1966
    ...in the discretion of the trial court. (People v. Ford, 60 Cal.2d 772, 793-794, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Newville, 220 Cal.App.2d 267, 272, 33 Cal.Rptr. 816.) The right of discovery is a right which may be waived. (People v. Garner, 57 Cal.2d 135, 142-143, 18 Cal.Rptr. 40, 3......
  • People v. Cavanaugh, Cr. 11797
    • United States
    • United States State Supreme Court (California)
    • August 19, 1968
    ...from out of state remains within his sound discretion. The statute has been consistently so construed (People v. Newville (1963) 220 Cal.App.2d 267, 274, 33 Cal.Rptr. 816; People v. Cahan (1956) 141 Cal.App.2d 891, 901, 297 P.2d 715; cf. People v. Washington (1967) 248 Cal.App.2d 470, 475, ......
  • Request a trial to view additional results
12 cases
  • Com. v. Edgerly
    • United States
    • Appeals Court of Massachusetts
    • April 19, 1978
    ...been consistently so construed. People v. Cavanaugh, 69 Cal.2d 262, 266-267, 70 Cal.Rptr. 438, 444 P.2d 110 (1968). People v. Newville, 220 Cal.App.2d 267, 274-275, 33 Cal.Rptr. 816 (1963); State v. Lesco, 194 Kan. 555, 560, 400 P.2d 695, cert. denied, 382 U.S. 1015, 86 S.Ct. 627, 15 L.Ed.2......
  • State v. Etheridge, No. 39700
    • United States
    • United States State Supreme Court of Washington
    • July 9, 1968
    ...of the court that the witnesses are material. The mere assertion that witnesses are material is insufficient. People v. Newville, 220 Cal.App.2d 267, 33 Cal.Rptr. 816 (1963); People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473 (1966), cert. denied, 389 U.S. 906, 19 L.Ed.2d 223, 88 S.Ct. 222 (1967......
  • People v. Crovedi, Cr. 172
    • United States
    • California Court of Appeals
    • March 3, 1966
    ...in the discretion of the trial court. (People v. Ford, 60 Cal.2d 772, 793-794, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Newville, 220 Cal.App.2d 267, 272, 33 Cal.Rptr. 816.) The right of discovery is a right which may be waived. (People v. Garner, 57 Cal.2d 135, 142-143, 18 Cal.Rptr. 40, 3......
  • People v. Cavanaugh, Cr. 11797
    • United States
    • United States State Supreme Court (California)
    • August 19, 1968
    ...from out of state remains within his sound discretion. The statute has been consistently so construed (People v. Newville (1963) 220 Cal.App.2d 267, 274, 33 Cal.Rptr. 816; People v. Cahan (1956) 141 Cal.App.2d 891, 901, 297 P.2d 715; cf. People v. Washington (1967) 248 Cal.App.2d 470, 475, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT