People v. Flannigan

FOURT, J. This is an appeal from a judgment of conviction of murder in the second degree.

In an information filed in Los Angeles County on January 23, 1963, defendant was charged with murdering Monroe Porter on December 28, 1962. It was further charged that defendant previously had been convicted of robbery in 1949 and had served a term therefor in a state prison. Defendant was arraigned on January 23d, 1963, and on January 28th, 1963, he pleaded not guilty and denied the charged prior [728]conviction. Trial was set for March 7th, 1963, and on that date defendant made a motion, pursuant to section 1871, Code of Civil Procedure, and the court appointed Doctor MeNiel to examine defendant with reference to his mental condition. The key witness for the prosecution was unavailable and the trial was continued to April 8, 1963. On the latter date, defendant entered an additional plea of not guilty by reason of insanity, and, further, upon motion of the defendant the court appointed Doctor Marinacei to perform an electroencephalograph examination of defendant. The trial was continued to June 4, 1963, upon motion of defendant. On June 17th, 1963, a jury trial was waived and in effect it was stipulated that the hearings on the respective pleas would be consolidated for all purposes as to the testimony of the doctors. The judge found the defendant guilty of murder in the second degree and found that defendant was sane at the time of the commission of the offense and at the time of trial. No disposition was made of the charge of the prior conviction, although there can be no doubt of the truth of such charge for the defendant himself testified that he had been so convicted and the records support such testimony. In any event, defendant was sentenced as a first offender. Motions for a new trial and for probation were denied and judgment was pronounced on July 19,1963.

A timely notice of appeal was not filed. Defendant wrote a letter to the clerk of the superior court on September 30. 1963, wherein he made inquiry as to whether a notice of appeal had been filed. On October 2 and October 14, 1963, defendant attempted to file a late notice of appeal. In a proceeding before the Supreme Court the attorney testified that he had not promised to file a notice of appeal; however, the court held that the defendant should be entitled to file the notice of appeal and ordered such accordingly in an opinion filed November 17, 1964. On December 17, 1964, the clerk of the Supreme Court wrote to the clerk of the superior court advising the latter, in effect, that the Supreme Court had ordered the filing of the notice of appeal and the preparation of the record on appeal.