People v. Fulton

Opinion

KINGSLEY, Acting P. J.

Defendant was charged, jointly with Tremain Rufus Adams, with: (count I) robbery of Jose Marroquin, in violation of section 211 of the Penal Code; (count II), robbery of Dolores Anaya, in violation of section 211 of the Penal Code; (count III), burglary, in violation of section 459 of the Penal Code; (count IV), robbery of Aníbal R. Guerra, in violation of section 211 of the Penal Code; (count V), burglary, in violation of section 459 of the Penal Code; (count VI), robbery of Marie Gonzales, in violation of section 211 of the Penal Code; (count VII), burglary in violation of section 459 of the Penal Code; (count VIII), rape of Marie Gonzales; (count IX), robbery of Victor Quintero, in violation of section 211 of the Penal Code; (count X), burglary in violation of section 459 of the Penal Code; (count X), burglary in violation of section 459 of the Penal Code. Allegations of the use of a firearm were alleged as to each count and bodily harm was alleged in connection with count VII. After a trial by jury, he was found guilty on counts I, II, III, VI, VII and XI; no verdicts were returned on counts IV and V; the jury reported disagreement on count VIII and it was dismissed. He was sentenced to state prison; he has appealed; we reverse.

On this appeal defendant does not contest the sufficiency of the evidence to support the verdicts. His contentions are: (1) that he was denied his right to a speedy trial; (2) that the trial court improperly denied his motions for a continuance; (3) that the . trial court erred in permitting him to

testify

without having given to him the required warnings; and (4) that the trial court erred in computing the term of his imprisonment. We reject the first contention; we agree with the second contention and agree in part with the fourth contention; since our holding on the second contention impels a reversal, we need not consider the third contention.

I

The case had been continued for some time; ultimately it was called for trial on February 17, 1978. It was trailed from that date for reasons

[975]

not here attacked. Under section 1382 of the Penal Code, the last day of trailing, except for good cause, was February 27, 1978. On February 24, 1978, the matter was before the court on defendant’s motion to discharge his court-appointed counsel and represent himself. After some discussion, at the suggestion of his then counsel, the matter of the motion for self-representation was continued to the following Monday, February 27th. On that date, after a discussion between the trial court and the prosecutor, but in the absence of both defendant and his then counsel, the case was ordered trailed to the next day. On February 28th, which was the 11th day of trailing, defendant and his counsel were present; the court granted the motion for self-representation but appointed the former attorney to act as advisory counsel. Neither defendant nor his counsel objected to the delay into the 11th day or moved to dismiss. Instead, defendant complained only that he was being denied pro. per. privileges and the trial court made an order on that complaint. The case was again trailed until March 1st. On that date, the case was again trailed for an additional day because of the illness of codefendant Adam’s counsel. On March 2d, the cases of the two defendants were severed and the case against defendant proceeded to trial.