People v. Fleischer

JEFFERSON, J. In an amended information filed by the District Attorney of Los Angeles County, defendant was charged with the crimes of burglary, grand theft, and receiving stolen property. The information further alleged four prior felony convictions. Defendant entered a plea of not guilty and denied the prior convictions. Later, the defendant entered a plea of guilty to count III, receiving stolen property, and not guilty as to the other counts. He admitted one of the four prior felony convictions, to wit, petty theft with a prior conviction of a felony. The remaining prior felony convictions on motion of the People were stricken. The court sentenced defendant to state prison for the term prescribed by law. Judgment was entered June 9, 1955. No appeal was taken from this judgment.

Defendant petitioned this court for appointment of counsel to represent him on appeal. This court, having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona.

On February 23, 1962, approximately seven years later, defendant filed a “Motion to Vacate a Void Judgment," asserting that the judgment was null and void because it was obtained by fraud, deceit, and intimidations; further, that the trial judge in imposing judgment and sentence “without a trial by jury" was in violation of the state and federal Constitutions. The court denied the motion on February 26, 1962. A copy of the minute order was directed to be sent to de[483]fendant in state prison. Thereafter, on March 13, 1962, the purported notice of appeal was filed by defendant beyond the 10 days required by rule 31 of the California Rules of Court.* No showing is made by defendant why the requirements of the rules on appeal should not apply to him; his appeal from the original judgment should have been taken almost seven years earlier. (In re Del Campo, 55 Cal.2d 816, 817 [13 Cal.Rptr. 192, 361 P.2d 912] ; People v. Lewis, 219 Cal. 410, 416 [27 P.2d 73].) However, this appeal is subject to dismissal for more fundamental reasons than procedural defects.

Defendant sets forth, for the first time, in his opening brief, accusations of collusion between the district attorney and the public defender in obtaining defendant’s plea of guilty. He asserts that the district attorney purportedly told the public defender that defendant should plead guilty to receiving stolen property and admit one prior felony conviction or stand trial on burglary, grand theft, receiving stolen property, and four prior felony convictions. Defendant’s charge of corrupt dealing between counsel should have been made to the trial court. All presumptions favor the regularity of the proceedings below. The charge appears baseless and need not be considered when raised for the first time on appeal. (People v. Gurule, 169 Cal.App.2d 280, 281 [337 P.2d 111].)