People v. Carroll

HERNDON, J. Defendant Carroll appeals from the judgment of conviction entered against him following a nonjury trial upon an information in two counts charging him with the crime of assault with a deadly weapon in violation of section 245 of the Penal Code.

In seeking a reversal, appellant contends: (1) that the evidence was insufficient to support the convictions; and (2) that he “was denied due process by the trial judge in remanding him to jail if the trial was to be continued although he was then on bail.”

The second assignment is based upon a misinterpretation of the record. The reporter’s transcript makes it clear that when this cause was called for trial, appellant was not present; his counsel, Mr. Porter, appeared for him. The record reveals the following statements of counsel and the trial judge: “Mr. Porter: Mr. Carroll contacted me last night and said he would be here at 9:00 o ’clock this morning, and the Court knows my entire knowledge. The Court: I will have to issue a bench warrant and forfeit the bail. Mr. Porter: Yes. The Court: In the ease of bail, bail forfeited, bench warrant issued. Mr. Porter: Yes, your Honor. The Court: Let us see. There was a $2000 bail. Well, bail, $10,000. Mr. Porter: Thank you, Your Honor. I have no other alternative. The Court: Thank you very much.”

Thereafter, a plea of guilty was entered by a codefendant who was represented by other counsel. Appellant’s attorney thereupon advised the court that his secretary had just called the bailiff to report that appellant had contacted counsel’s office and was en route to court. The court then stated: “I can only let the present order stand. If he gets here, we will discuss the matter at that time. We had better keep all witnesses here, Mr. Prosecutor, until we see what the story is.”

When the court reconvened at 10:20 a.m., appellant attempted to explain his failure to appear at the hour scheduled by his assertion that he thought the case was set for 9:30 a.m. The court quite correctly observed that this was not an ade[350]quate excuse for appellant’s appearance after 10 o’clock, and that, as a result, the court, the witnesses, counsel, and the co-defendant had been kept waiting. The court therefore refused to vacate the bail forfeiture, but did reduce the bail on the warrant to $5,000. Therefore, contrary to appellant’s assertion on this appeal, he was not “on bail” at the time the request for a continuance was considered. Further, contrary to appellant’s assertion, the order remanding him to jail was not made contingent upon any continuance of his trial.