People v. Gutkowsky

ASHBURN, J. This court having denied four applications for appointment of counsel, notice having been given under California Rules of Court, rule 17 (a) † and no opening brief having been filed by or on behalf of the appellant, we have submitted the appeal upon the merits.

Charged in three counts with forgery of fictitious name (Pen. Code, § 470), defendant, who was represented at the trial by counsel of his own choice, waived a jury trial and was convicted of all three charges. The court found to be true allegations of two prior convictions of felony, viz., burglary in Illinois and forgery and robbery in California, for each of which convictions he served a term in state prison. [497]Probation was denied and sentences in the instant case were ordered to run concurrently.

The case was submitted upon the transcript of the preliminary hearing with the understanding that any exhibits that were received in evidence at that time be received in evidence at the superior court trial. The trial judge announced that he had read the preliminary transcript and both sides rested, whereupon the judge said: “I don’t think there is any doubt in this matter. Find the defendant guilty as charged in Counts I, II and III of the Information on file herein.” This was on October 16, 1961.

On November 21, 1961, the time set for sentencing and hearing of probation application, defendant through his attorney, Mr. Dunham, sought a further continuance. The attorney said he did not know what ground his client had and so: “ The Court : What is the ground for a continuance f The Defendant : I am releasing Mr. Dunham as of now, and I have Mrs. Root and Mr. McPherson handling it, and—The Court: Mr. Gutkowsky, Mrs. Root has called the court this morning, and indicated she is not representing you, and does not intend to, so I see no reason for any further delay in this matter.. . . The Defendant: Well, then, I would like to have an attorney, then. The Court: Well, I am sorry, Mr. Gutkowsky. This matter has been going on now for some time, and I see nothing that could be gained by additional counsel or other counsel.” Thereupon sentence was imposed. Manifestly there was no error in this ruling.

At the preliminary hearing defendant was represented by a deputy county public defender. He did not testify then or at his trial in the superior court. No legal questions of any substantiality emerge from the record, no question of admissibility of evidence or of involuntary nature of confession, no problem of weighing conflicting evidence.