People v. Nelson

LILLIE, J.

Defendant was convicted of possession of marijuana (§ 11530, Health & Saf. Code). On February 19, 1964, criminal proceedings were suspended and probation was granted for a period of three years upon certain terms and conditions, among them that defendant spend 30 days in the county jail and thereafter obey all laws, orders, rules and regulations of the probation department and the court. Sometime later defendant was convicted of operating a motor vehicle at a time when his driver’s license was revoked. For this offense he was sentenced to serve 180 days in the county jail.

On May 17, 1966, the original narcotic ease came before the court on a violation of probation; defendant failed to appear and probation was revoked and a bench warrant issued. Subsequently the matter of violation of probation was called and defendant and his counsel were present in court; a supplemental probation report was ordered and the probation

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department asked to work out a lawful program. On June 13, 1966, the hearing on violation of probation was held. The judge stated he had read and considered all probation reports. After substantial argument by his counsel defendant was found to have violated the conditions of his probation; probation was revoked and he was sentenced to the state prison for the term prescribed by law. From this judgment defendant appeals.

Appellant contends that after revoking probation the trial judge failed to arraign him for judgment pursuant to section 1200, Penal Code, before pronouncing judgment. He says that had the judge asked him if he had any legal cause to show why judgment should not be pronounced, “it would appear from the record that [his] counsel could very well have informed the Court that there was legal cause, to wit, that [he] was then insane,” and that such assertion “would have been . . . based upon factual considerations present in the case, which can be deduced from the colloquy between the Trial Court and defense counsel. ’ ’

There is nothing in the colloquy between defense counsel and the judge, counsel’s arguments, the probation reports, the record before us or the original superior court file from which it could be inferred that defendant was insane. In pleading that the court consider probationary type modification for defendant, counsel told the court that “a few years ago, he was involved in a motorcycle accident. Up to that time there had been—he had had no problem. As a result of the accident, he developed some form of epilepsy, and he has been required to take medication every [sic] since. He—there has been some brain damage. ... I talked to his father and his father said he is progressing. The brain damage is healing.” Counsel considered defendant’s problem to be a physical one and stated that as long as he takes his medicine he can function and perform well and there is no possibility of a seizure; because of seizures he has had problems with his employment; his father recently purchased a lumber company and put defendant in charge “and he’s functioning well, and he is improving, mentally and medically, as long as he takes his medication”; his problem “basically is a physical or a mental