People v. Sweeden

GRIFFIN, J.

Defendant was previously charged with two counts of forgery and with a prior conviction of a felony and having served a term of imprisonment therefor. He was then represented by court-appointed counsel. He pleaded guilty to the charges and admitted the prior conviction. On March 21, 1952, he was sentenced to state’s prison. The commitment was suspended for a period of three years and defendant was granted probation for that period conditioned, among other things, that he serve one year in an adult detention facility, and not violate any law or ordinance. No appeal was taken from the judgment thus entered.

On June 26, 1952, he was brought before the court (Judge Morton) and charged with having violated his probation in that he was gambling at the county road camp, and conspiring to commit escape therefrom. At the hearing, as noted from the minutes, defendant was present in court without counsel. Apparently no request was made for such assistance. The record does not disclose whether defendant was or was not informed of any right he might have to the aid of counsel at that time. After a rather full hearing the probation order was revoked and the defendant was, on June 26, 1952, committed to the custody of the Superintendent of Correction at Chino.

On October 2, 1952, defendant filed his motion denominated motion to vacate and set aside judgment rendered on June 26, 1952, revoking probation and committing him to the state institution, upon the ground that he was not represented by counsel at the hearing on the matter of revocation of his probation. He claimed that the court did not inform him of his right to counsel and that the court did not offer to appoint counsel for him; that the proceedings were therefore in violation of his right to due process of law guaranteed by article I of section 13 of the California Constitution, and that there was not sufficient evidence that he violated any law justifying the revocation of his probation.

[893]

Although defendant was not present, counsel was appointed by the court to represent him at the hearing of his motion. Judge Gabbert denied this motion. Defendant appealed.

He argues first that the court erred in not ordering that he be allowed to appear at the hearing on the motion to vacate the judgment. The only indication that the defendant wished to be present at the hearing is found in the notice of motion, which states that the motion would be based on written and oral evidence to be presented by himself at the hearing. He neither asked the court to allow him to be present, nor showed any necessity for his presence at the hearing. He does not now suggest any prejudice that he suffered by being absent therefrom. The court appointed counsel to represent him. No abuse of discretion is shown in the failure of the court to order the return of the defendant for the hearing. The court’s determination in this respect can be set aside only upon a showing of an abuse of such discretion.