People v. Ford

LILLIE, J. The inception of the within proceedings was by way of information filed in San Luis Obispo County charging defendant with seven felonies committed in June 1961 (burglary [count I] ; possessing a concealable weapon [count II] ; robbery [count III]; kidnaping [count IV]; assault with a deadly weapon [count V]; kidnaping [count VI]; and murder of a deputy sheriff [count VII].) The cause was tried to a jury and defendant was convicted on all seven counts; [392]the burglary, robbery and murder, each was found to be in the first degree. On count VII the jury fixed the penalty at death. The Supreme Court affirmed the judgment on counts I through VI, modifying count I to show a conviction of burglary in the second instead of the first degree, and ordering rearraignment and resentenee on the first' six counts; and reversed the judgment as to count VII remanding the cause for a new trial (People v. Ford, 60 Cal.2d 772, 801-802 [36 Cal. Rptr. 620, 388 P.2d 892]).

The retrial of defendant for murder on count VII was to a jury; again defendant was found guilty of murder first degree and the penalty was fixed at death. The Supreme Court modified the judgment imposing the death penalty by reducing the degree of the crime to murder of the second degree, and affirmed the judgment as modified. The cause was remanded to the trial court “with directions to arraign and pronounce judgment on defendant on the homicide count in accordance with the rules stated in this opinion.” (People v. Ford, 65 Cal.2d 41, 59 [52 Cal.Rptr. 228, 416 P.2d 132].) The judgment imposing sentence on the other six counts was affirmed.

Pursuant to the remittitur issued by the Supreme Court and in the morning of June 15, 1966, defendant was arraigned for judgment in the trial court; he requested that counsel be appointed to represent him. The court appointed the public defender and continued further arraignment and pronouncement of judgment to 2 p.m. on the same day. At the request of the public defender pronouncement of judgment was continued to September 28, 1966. On September 28, 1966, the court heard defendant’s declaration for disqualifiation of the trial judge and ruled that the declaration was not timely filed. Thereafter again defendant was arraigned. He then moved to have the matter referred to the probation department for a pre-sentence investigation report; the motion was denied. The trial judge asked defendant if he had any legal cause to show why judgment should not be pronounced against him; defendant having stated “None.” the judge, reciting “that, by reason of the commission of the offense of murder as charged against the defendant in the Information, and of which he has been found guilty in the second degree,” sentenced defendant to the state prison for the term prescribed by law, the sentence to run concurrently with any and all prior uncompleted sentences theretofore imposed. Defendant appeals from the judgment.