People v. Howard

FINLEY, J. pro tem.

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Appeal from the judgment of conviction on three counts of grand theft, based upon obtaining money by deceit and false pretenses, and from the order revoking probation.

Reversal is sought on the ground that appellant was not advised of his right to counsel and to remain silent prior to the making of admissions which were introduced into evidence at his trial.

Appellant was charged by information and pleaded not guilty to three counts of grand theft in violation of Penal Code, section 487. He was tried before a jury which, on January 12, 1959, returned a verdict of guilty on all three counts. On March 3, 1959, appellant was arraigned for pronounce

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ment of judgment, which was then withheld, and he was granted probation for a period of six years. No appeal from this order was taken. On December 5, 1961, his probation was revoked but he apparently could not be apprehended. On September 24, he was returned to court and sentenced on all three counts. On the same day he filed notice of appeal “from the judgment and order ■. . . entered on September 24, 1964. ...”

By letter dated September 29, 1964, appellant was notified by the clerk of the trial court that the judgment had been entered on March 3, 1959 and that under rule 31 (a) of the Judicial Council Rules on Appeal, the notice came too late and was therefore marked “Received on September 24, 1964 but not filed.” Appellant thereupon applied to this court for relief, presented in the form of a petition for a writ of habeas corpus, which was granted and the clerk of the trial court was ordered to file the notice of appeal.

- The three counts upon which appellant was convicted arose out of his relationship with one Vera P. Koch, a widow, who was the complaining witness. She testified that upon his pretense that he loved her and wanted to marry her, she entrusted him with several sums of money totaling about $12,000 for specific purposes which appellant failed to perform but kept the money; that his pretenses that he loved her and wanted to and would marry her were false, for appellant was married and living with his wife, a fact which was unknown to the complaining witness.

Appellant contends his conviction must be reversed since no evidence establishes he was advised of his right to counsel and his right to remain silent before making the admissions to a police officer which were introduced into evidence at his trial. His position is that the rules announced in