People v. Clements

KAUFMAN, P. J.

On this appeal from an order revoking probation (Pen. Code, § 1237, subd. 3), defendant, D. A. Clements, contends (1) he was denied due process of law at the time of his conviction because he was convicted on the basis of the transcript of the preliminary hearing; (2) he was denied due process of law at the time of his conviction because in his confused mental state, he could not properly waive his right to be convicted on evidence establishing his guilt beyond a reasonable doubt or his right to seasonably appeal; (3) that he was denied his right to present evidence in mitigation of punishment at the hearing on the motion for revocation of probation; and (4) that the trial court erred to his prejudice, by considering at the hearing on the motion for revocation of probation the evaluation report, prepared by the California Medical Facility. There is no merit in any of these contentions.

The record reveals the following: on April 28, 1960, appellant was charged by information with grand theft in violation of section 487 of the Penal Code. At his arraignment on May 9, the appellant was represented by counsel and waived advice and reading of the information. On May 16, appellant entered a plea of not guilty. A jury trial was ordered for June 20,1960. On that date, the appellant was in the hospital and the trial taken off calendar

and time for resetting

continued to August 15, at the appellant’s request. Thereafter, on August 15, 1960, in the presence of the appellant, his counsel moved to withdraw the request for a jury trial and to submit the case on the preliminary transcript. This motion was granted after the defendant personally waived a jury trial and waived time. The court found the defendant guilty as charged, and on September 12, 1960, suspended sentence, and granted probation for one year on condition that the ■ appellant take psychiatric treatment.

[286]

On February 9, 1961, the People instituted a proceeding to revoke probation. Appellant admitted the allegations in the three paragraphs of the affidavit for revocation. On February 20, appellant’s counsel moved for a psychiatric evaluation and a ninety day observation period. This motion was granted and appellant ordered to the California Medical Facility at Vacaville for a period not exceeding ninety days. After a hearing on May 22, probation was revoked and appellant sentenced to the state prison with psychiatric treatment recommended. The notice of appeal was timely filed on May 29, 1961, in propria persona.