People v. Tenedor

Decision Date16 November 1951
Docket NumberCr. 4667
Citation237 P.2d 679,107 Cal.App.2d 581
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE v. TENEDOR.

Stanley L. Avery, Edward I. Gorman, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Frank Richards and Gilbert Harelson, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Defendant was convicted by the court, a jury having been waived, of a violation of subdivision 4 of section 337a of the Penal Code--unlawfully recording wagers on horse races. He appealed from the judgment and sentence. As an appeal does not lie from the sentence, that appeal must be dismissed.

Defendant's assignments of error are: (1) he was denied a speedy trial in that the court did not set the case for trial within 30 days after the entry of the plea, and in that he was not brought to trial within 60 days after the filing of the information; (2) the evidence is insufficient to support the judgment; and (3) the court erred in denying his motion for a new trial in that he was not sentenced within 30 days from the time he was found guilty.

The information was filed December 13, 1950. Defendant was arraigned and pleaded not guilty on December 15, 1950. On that date the cause was set for trial on January 24, 1951. On the latter date the cause was called for trial, the parties stipulated that a jury be waived and that the case be submitted on the testimony taken and the exhibits received at the preliminary examination with the reservation that each side could produce additional testimony, whereupon the following occurred:

'Mr. Forno [Attorney for defendant]: * * * May I suggest the 23rd of February, your Honor?

'The Court: Very well, February 23rd.'

On February 23, 1951, the cause was again called, both parties submitted the case without the production of any additional evidence, and the defendant was adjudged guilty.

Penal Code section 1050, in pertinent part, reads: 'The court shall set all criminal cases for trial for a date not later than thirty (30) days after the date of entry of the plea of the defendant. * * *' The cause was set for trial 40 days after the entry of the plea. That fact, however, does not compel a reversal of the judgment. Section 1050 does not provide that the action shall be dismissed if the case is not set for trial for a date not later than 30 days after the date of entry of the plea. The section is directory and a mere failure to comply with its terms does not entitle defendant to a new trial. Ray v. Superior Court, 208 Cal. 357, 359, 281 P. 391.

Penal Code section 1382, in pertinent part, reads: 'The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * *

'2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information. * * *'

The cause was brought to trial on January 24, 1951, within 60 days after the filing of the information. Assuming, as defendant contends, that he was not brought to trial on January 24, the continuance from that date to February 23 was at the suggestion of defendant and constituted a waiver of his right to be brought to trial within 60 days after the filing of the information. The right to a speedy trial, guaranteed by the Constitution, Art. I, § 13, and given by the code provisions, may be waived by the defendant. Ray v. Superior Court, 208 Cal. 357, 358, 281 P. 391; People v. Scott, 74 Cal.App.2d 782, 784, 169 P.2d 970. No objection was made by the defendant to the proceedings had in the trial court. The application for dismissal must be made in the first instance in the trial court; and if it is not made there, the right is waived. People v. Newell, 192 Cal. 659, 669, 221 P. 622.

Harris v. Municipal Court, 209 Cal. 55, 285 P. 699, Rice v. Superior Court, 40 Cal.App.2d 391, 104 P.2d 874, and People v. Fegelman, 66 Cal.App.2d 950, 153 P.2d 436, relied on by defendant, are not in point. In the Harris and Rice cases the defendants were not brought to trial within 60 days and they had not consented to or acquiesced in the delay. In each of the cases relied on the defendant moved to dismiss the proceeding in the trial court. There is no merit in defendant's claim that he was denied the right to a speedy trial.

On November 7, 1950, defendant was the attendant in a cigar store. His activities were observed by a police officer. Several men entered the store and looked at some newspapers dated November 7, 1950, which were open at sections containing horse racing entries and selections for that day. After referring to the newspapers the men handed something to defendant who was behind the counter. Defendant then walked to one side of the counter and ducked down behind it out of sight for a short period of time. He would then reappear, walk to the other end of the counter, open the cash register, and place something inside. One of the men, after looking at one of the newspapers, took what appeared to be his billfold from his right hip pocket, opened it, took out a piece of paper, and handed it to defendant. On two occasions defendant came out from behind the counter, walked to an automobile parked in front of the store, entered on the passenger side, leaned toward the dashboard, and then reentered the store. Defendant was then placed under arrest and immediately thereafter the officer found eight betting markers, three of which had writing thereon, behind the counter at the position where defendant had ducked out of sight. The officer found two other betting markers behind the dashboard of the automobile, each of which had writing thereon. The handwriting on the betting markers was defendant's. On one of the betting markers behind the counter there appeared the letter 'B,' followed by the letters 'Reg,' followed by a '1-1' and a 'C.' The 'B' and the...

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20 cases
  • People v. ENGRAM
    • United States
    • California Supreme Court
    • October 25, 2010
    ...statute, the court in McFarland stated: “The provisions [of section 1050] relied upon merely establish a policy ( People v. Tenedor, 107 Cal.App.2d 581, 583, 237 P.2d 679); are not absolute ( People v. Osslo, 50 Cal.2d 75, 106, 323 P.2d 397); and do not require that criminal proceedings be ......
  • People v. COLE
    • United States
    • California Court of Appeals Court of Appeals
    • July 25, 2008
    ...804, 312 P.2d 264, in support of this contention. The provisions relied upon merely establish a policy ( People v. Tenedor, [(1951)] 107 Cal.App.2d 581, 583, 237 P.2d 679); are not absolute ( People v. Osslo [(1958)] 50 Cal.2d 75, 106, 323 P.2d 397); and do not require that criminal proceed......
  • People v. Goldstein
    • United States
    • California Court of Appeals Court of Appeals
    • February 9, 1956
    ...to give the requested instructions to be reversible error. People v. Levene, 107 Cal.App.2d 125, 236 P.2d 604; People v. Tenedor, 107 Cal.App.2d 581, 584, 237 P.2d 679. The judgment and the order denying a new trial are SHINN, P. J., and PARKER WOOD, J., concur. 1 The refused instructions w......
  • People v. Hocking
    • United States
    • California Court of Appeals Court of Appeals
    • April 16, 1956
    ...of the Penal Code, is one which a defendant may waive. See, People v. Greene, 108 Cal.App.2d 136, 140, 238 P.2d 616; People v. Tenedor, 107 Cal.App.2d 581, 583, 237 P.2d 679. That case held also that where a defendant does not object to going to trial nor makes a motion to dismiss under sec......
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