People v. Straw

California Court of Appeal Nov 15, 1962 No. Crim. 4123Published

Before: Shoemaker

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Holding. The court held that the trial court's failure to ask the defendant if he had legal cause why judgment should not be pronounced after revoking probation did not constitute prejudicial error, and that the record refuted the defendant's claim that he lacked counsel.

Issues

Whether the trial court erred in revoking probation and pronouncing judgment in the absence of counsel.
Whether the trial court's failure to ask the defendant if he had legal cause why judgment should not be pronounced constitutes prejudicial error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The record completely refutes this contention.”

“The courts have repeatedly held, however, that the omission of the question need not constitute prejudicial error.”

“No prejudice appears, and it would be an idle act and a prejudice to the appellant to return her solely for the purpose of again pronouncing judgment.”

[566]

SHOEMAKER, J.

On March 4, 1958, the defendant, Warren Edwin Straw III, was charged by information with two counts of burglary. On March 10, 1958, the defendant pleaded guilty to the first count. Thereupon, on the motion of the district attorney, the court dismissed the second count. The defendant, when arraigned for judgment, interposed a motion for probation.

On April 22, 1958, the probation hearing was held and upon stipulation of both counsel, the court determined the crime to be second degree burglary. Imposition of sentence was then suspended and the defendant was placed on probation for five years on the condition that he spend three months in the county jail, pay a fine of $250, and make restitution.

On April 18, 1961, the defendant was charged by information with a violation of Vehicle Code, section 10851. The defendant was also charged with a prior felony conviction for burglary. On April 21, 1961, the defendant was arraigned. On April 24, 1961, the proceedings were suspended and defendant was ordered examined for present sanity pursuant to Penal Code, section 1368. The defendant was found sane, and, on May 10, 1961, pleaded guilty to the offense and the charge of a prior felony conviction was dismissed. The defendant moved for probation. On May 31, 1961, the court sentenced the defendant to state prison, and then suspended the sentence and placed the defendant on probation for three years, on condition that he serve nine months in the county jail.

On November 13, 1961, the prosecution, at the request of the probation department, moved to revoke the defendant’s probation. The matter was heard on November 14, 1961, and the court revoked the defendant’s probation on both the burglary and vehicle theft convictions. The court then sentenced the defendant to state prison on the conviction of April 22, 1958, for second degree burglary, and put into effect the state prison sentence that had been suspended on the Vehicle Code violation, both sentences to run concurrently, from which judgments the defendant appeals.

In regard to the burglary conviction, it may be noted that no judgment of conviction or sentence of imprisonment in a state prison was entered against appellant until the November 14 hearing, when the court revoked probation and for the first time pronounced judgment and sentence. This judgment is appealable under Penal Code, section 1237, subdivision

People v. Straw

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SHOEMAKER, J.

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