People v. Lo Cicero

COUGHLIN, J. Defendant was convicted of the offense of possession of marijuana; was granted probation, one of [928]the conditions, of which was that he not associate with known narcotic users or distributors; violated the terms of his probation, on account of which it was revoked; purportedly was sentenced upon the conviction; and appeals.

While on probation defendant was convicted of the offenses of furnishing marijuana and selling marijuana. He appealed these- convictions which have been affirmed in a decision filed by this court this day in People v. Lo Cicero *(Cal.App.) 74 Cal.Rptr. 684, No. 3297. Denial of probation in the case involving these convictions, pronouncement of judgment in that cáse and revocation of probation in the instant ease occurred during the course of proceedings undertaken at the same time, which was the date set for pronouncement of judgment in the later case. Defendant was represented by counsel who represented him in that case. Probation had been granted him in the' instant ease upon an order suspending imposition of 'sentence. During the trial of the instant case defendant had been represented by other counsel. The fore part of the instant proceedings consisted in the presentation, argument and denial of a motion for new trial in the later case. Thereupon the court inquired whether defendant waived arraignment for -judgment and, through counsel, received an affirmative reply. A. supplemental report of the probation officer in the instant - case recommending revocation of probation was read and considered by the court. At the conclusion of discussions between court and counsel, the trial judge stated: “Probation granted the defendant, Louis Lo Cicero, in ease No. 9197 [the instant ease], is hereby revoked”; denied probation, pronounced judgment and imposed sentence in the later case; and remanded defendant to the custody of the sheriff for delivery to the state prison. Defense counsel asked: “If the Court please, this is sentence in which ease?” The judge replied: “This is the sentence in the present case [i.e., the case' involving the later convictions]. I just revoked probation in the first ease that he was convicted of. Those two sentences are to be served concurrently.” This concluded the hearing.- Subsequently a signed judgment in writing, imposing a sentence of imprisonment in the state prison, was filed.

Defendant- contends the judgment is void because: (1) It does not appear he waived representation by an attorney of his choice in the proceeding culminating in the judgment from which he appeals; (2) it does not appear he had notice .of the time for pronouncement of judgment; (3) he was not