People v. Sweet

KNIGHT, J.

The defendant was convicted of an attempt to commit the felony denounced by section 288a of the Penal Code, and he has appealed.

The sufficiency of the evidence to sustain the conviction is not questioned, nor are any of the rulings made during the course of the trial assigned as error. The points urged for reversal arise out of the proceedings had at the time of the pronouncement of judgment. In this connection the record shows that at the time defendant was first arraigned on the charge, he appeared with counsel of his own selection, entered a plea of not guilty, and waived a trial by jury. The cause

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was tried on a date agreed upon by counsel, and defendant was found guilty as charged. The matter was then, at defendant’s request, referred to the probation officer and continued approximately a month. The probation officer filed an adverse report, and following a hearing thereon probation was denied. Thereupon, in conformity with statutory procedure defendant was arraigned for judgment and his counsel, Mr. Creely, made and submitted a motion for new trial on all statutory grounds. At this stage of the proceedings defendant ’s present counsel, Mr. Ewell, appeared, stating he had just been employed in the case, and insisted on being substituted at once in the place of Mr. Creely. The court refused to permit the substitution to be made at that particular time, giving its reasons therefor; and during the discussion which followed between Mr. Ewell and the court, Mr. Ewell asked permission to file a written application for the disqualification of the judge, and for a change of venue; also a written motion to vacate the judgment of conviction, to allow defendant to withdraw his waiver of a jury trial, and to grant him a trial by jury; and in support of the application and the motion he presented and asked permission to file also an affidavit made by the defendant. The court permitted the three documents to be filed, but denied the application and the motion. Thereupon the court asked if defendant had any further cause to show why judgment should not be pronounced. Mr. Creely replied in the negative; and the court imposed sentence, immediately following which an order was made for substitution of attorneys. Thereupon Mr. Ewell moved to set aside the pronouncement of sentence, and again urged the application and the motion theretofore filed by him. The motions and the application were denied, whereupon Mr. Ewell gave oral notice of appeal.