Mayorga

On this appeal we examine the propriety of raising for the first time on a motion for new trial the claim that a defendant’s rights under People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ] have been violated. Because under the facts of this case, defendant was not excused from raising the issue pretrial or during trial, we conclude his motion for a new trial on that ground did not timely raise the issue and the motion was properly denied. For this reason, and because defendant’s other arguments on appeal are also unmeritorious, we affirm.

Procedural History

Victoriano Mayorga (defendant) was charged with several counts of rape and kidnaping, all involving the same victim and all taking place in the early morning hours of May 7, 1983. Defendant was arrested that day but was released a few days later. Defendant was subsequently rearrested and, following a preliminary hearing, an information was filed on September 3, 1983.

On March 14, 1984, defendant’s first trial resulted in a mistrial, the court finding the jury to be deadlocked. Defendant was retried before a different trial judge. At the second trial the jury found the defendant guilty of all…