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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Pete MARTINEZ, Defendant and Appellant,

Cr. 8164.

Decided: January 30, 1963

Pete Martinez, in pro. per., for defendant and appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged with an assault with a deadly weapon against Los Angeles police Officer Hastain. The information also alleged that defendant had been convicted of five prior felonies for which he had served prison terms. Defendant pleaded not guilty and denied the priors. At the trial defendant waived a jury trial and stipulated that the transcript of the preliminary hearing might be used as the prosecution's case. The evidence showed the following:

On June 7, 1961, at about 2 a. m. Officer Hastain and his partner, Officer Finck, both in uniform, were on duty on Main Street near Fourth Street in downtown Los Angeles. They saw defendant struggling with another man. The other man broke away and told the officers that defendant had just taken his money. Officer Finck remained with the victim while Officer Hastain pursued the defendant. Officer Hastain seized defendant by the arm and started to question him, and defendant attempted to escape. In the struggle defendant managed to remove Officer Hastain's revolver from its holster. Defendant pointed the gun at the officer's abdomen and pulled the trigger. Fortunately for both the officer and the defendant, the gun did not fire. Officer Hastain used his baton to knock the revolver out of defendant's hand, and at this point Officer Finck tackled defendant and the two policemen took him into custody.

At the trial two spectators corroborated the testimony of the two officers. Defendant took the witness stand in his own defense. He said that he had been walking peaceably on Main Street with a girl when something hit him on the back of the head twice. After that he remembered nothing until he found himself in jail.

The record is in all respects regular, and the evidence supports the conviction of the offense of assault with a deadly weapon and the finding of the trial judge that four of the five priors were true. The prior convictions were proved by exemplified copies of official records, complete with photographs, descriptions and fingerprints of the defendant.

There is no basis for defendant's contention that he has not been properly represented by counsel. Defendant was represented at the preliminary hearing by the public defender. Before trial, on August 2, 1961, the public defender was relieved. When the case came on for trial on August 17 defendant moved for the appointment of ‘private counsel.’ No reason appeared why the public defender could not represent defendant, and there was no ground upon which the court could appoint other counsel at public expense (Pen.Code, § 987a; People v. Hughes, 57 Cal.2d 89, 98, 17 Cal.Rptr. 617, 367 P.2d 33), and hence this request was properly denied. The trial date was continued, and on August 24 the court again appointed the public defender, and he represented defendant throughout the trial. No proceedings occurred on any occasion in the trial court when defendant was not represented by counsel.

The public defender decided not to prosecute an appeal (that decision being his under Government Code, section 27706, subdivision (a)), and defendant appealed in propria persona. He applied to this court for the appointment of counsel on appeal. This court examined the record and concluded that it would be neither beneficial to the defendant nor helpful to the court to appoint counsel; hence, the application was denied. Defendant thereupon has filed an opening and closing brief on his own behalf.

Defendant asks for a reversal upon the ground that the record on appeal does not contain the complaint on which he was taken before the committing magistrate. He does not assert that there was no complaint. He says this court should assume that no complaint was ever filed. Such an assumption is unfounded because the Rules on Appeal (California Rules of Court, rule 33) do not provide for bringing up the complaint as a part of the normal record on appeal.

Defendant's contention that he was denied a speedy trial is without merit. The information was filed July 5, 1961, and defendant pleaded not guilty on July 10. Trial was set for August 17. On August 2 the public defender was relieved as counsel. On August 17 defendant made his motion for the appointment of other counsel, which was denied, and the trial was continued to August 24. On that date, at defendant's request, the public defender was reappointed and the trial continued to September 15, on which date the minutes show the trial was continued to October 20 ‘due to congested calendar and at the request of the defendant.’

Penal Code, section 1382, subdivision 2, entitled defendant to a trial within 60 days after July 5 unless the matter was set beyond that date with his consent, express or implied. The failure of defendant or his counsel to object to the continuance beyond the 60-day period indicates such consent. (People v. Tahtinen, 50 Cal.2d 127, 131, 323 P.2d 442.)

This court has read and considered the entire record and the briefs filed by the defendant. No other points require special comment.

The judgment is affirmed.

FILES, Justice.

SHINN, P. J., and FORD, J., concur.

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