People v. Fontana

• Decision Date: 20 December 1982
• Docket Number: Cr. 23310
• Citation: People v. Fontana, 188 Cal.Rptr. 612, 139 Cal.App.3d 326 (Cal. App. 1982)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny FONTANA, Defendant and Appellant. In re Danny FONTANA, on Habeas Corpus. A011545, A017686.
• Writing for the Court: POCHE; RATTIGAN, Acting P.J., and MOSCONE

Page 612

188 Cal.Rptr. 612

139 Cal.App.3d 326

The PEOPLE, Plaintiff and Respondent, v. Danny FONTANA, Defendant and Appellant In re Danny FONTANA, on Habeas Corpus.

A011545, A017686.

Cr. 23310.

Court of Appeal, First District, Division 4, California.

Dec. 20, 1982.

As Modified Jan. 19, 1983.

Quin Denvir, State Public Defender, Diane M. Griffiths, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

POCHE, Associate Justice.

Danny Fontana appeals from an order revoking probation ¹ granted after the imposition of sentence upon a plea of guilty to rape (former Pen.Code, § 261.3) ² with the use of a deadly weapon (§ 12022). Revocation proceedings were instituted in the San Francisco Superior Court on grounds which were also the bases for independent criminal charges in Marin County on which appellant had not yet been tried. Prior to the revocation hearing appellant moved for a continuance until completion of the collateral criminal proceedings in Marin County. The motion was denied. Appellant's counsel moved for a continuance at the hearing on the ground that he was not prepared. This motion was also denied. Following the hearing, appellant's probation was revoked.

We reverse the order revoking probation and deny as moot the habeas corpus petition, which raises identical issues.

Facts

The Procedural Background

In November of 1975, appellant pled guilty to rape (former § 261.3) with the use of a deadly weapon, a dagger (§ 12022). Thereafter appellant was found to be a mentally disordered sex offender (MDSO) and criminal proceedings were suspended.

In May of 1978, the court granted appellant's request to terminate his commitment as an MDSO and reinstated criminal proceedings. Appellant was sentenced to state prison for the term provided for by law, but execution of the sentence was suspended, and he was admitted to probation for five years.

On June 19, 1981, the probation department requested the court to issue a bench warrant and revoke appellant's probation on the ground that he had been arrested in Marin County on June 17 on a charge of rape. The court summarily revoked appellant's probation and issued a bench warrant that same day.

On June 26, 1981, after appointing counsel for appellant, the court referred the matter to the probation department for a supplemental report and recommendation. The court indicated that it would continue the matter until July 17. Appellant and counsel requested that the hearing be suspended until the outcome of the trial on the Marin County charges. The court stated that it would remand appellant into custody pending a hearing on the report on July 17, "and at that time we'll probably put it over to see what happens in Marin County, but I want to get a report."

The matter came for hearing on July 17 before a different judge. The probation report set forth the facts of the Marin County arrest, and included the police report and a statement by the victim to the police. The probation officer, noting that appellant had complied with all the conditions of his probation, recommended that probation not be revoked at that time, but that the matter be continued until resolution of the charge in Marin County. Counsel for appellant also requested that the matter be continued until the charge was tried in Marin County. The court stated that it would follow the probation officer's recommendation and that the matter would "go off calendar, to be set again by the Probation Department." The court clerk then commented that appellant's probation had already been summarily revoked on June 19, 1980, "[s]o it is not a first-time motion on calendar." Defense counsel agreed that it was not appropriate to take the matter off calendar, but instead, a future calendar date should be set. The following colliquy occurred: "THE COURT: What date? [p] MR HERRICK: [defense counsel] He is to be arraigned in Superior Court in Marin on the 29th. That is the next court date we know of. [p] THE COURT: What date are you recommending we put this over to? [p] MR. HERRICK: I don't know how long it takes to get a matter through trial. [p] MR. O' BRIEN: The People would be prepared to present evidence at an evidentiary hearing after there has been a preliminary transcript obtained from Marin County. I would suggest a continuance of, perhaps, three weeks. [p] MR. HERRICK: I would still ask the matter trail the Marin proceeding. It's going to be a jury trial. There is no other basis in this particular case but the Marin charges so I think it would be an appropriate case to trail. [p] I just can't tell you the dates because I don't know when it is going to be set for trial. If you wish to continue it sometime after the 29th on the understanding we would then know what the dates are, that would be fine. [p] THE COURT: August the 14th at 9:30 in this department for hearing. [p] MR. HERRICK: We should be ready to proceed with witnesses at that time? [p] THE COURT: Yes."

On July 31, 1981, appellant filed a motion to continue the probation revocation hearing until after October 5, 1981, the date for trial on the rape charge in Marin County. The matter came for hearing on August 6. The People opposed the motion and informed the court that they were prepared to proceed with an evidentiary hearing on August 14. The following colliquy occurred, which resulted in a denial of the motion for a continuance: "THE COURT: Anything further then, Mr. Herrick? [p] MR. HERRICK: Only, as I think I indicated previously, this was the Court's initial inclination. I am asking the Court to do now, since we have the full information, what the Court intended to do in Court last time. [p] THE COURT: I set it for hearing last time. [p] MR. HERRICK: What happened last time, we were in court as a result of the probation report, which the Court has, which does recommend this case--this revocation trail the trial. [p] The Court said, 'I will grant that. What is your date?' [p] All I could give the Court at the time was an arraignment date in Superior Court in Marin County. So, as a result, the Court had no date to trail it after. [p] Now we do know the Superior Court date in Marin County. [p] THE COURT: Have you already served your subpoenas? [p] MISS KLEE: We have the victim. That is the only witness necessary. [p] MR. HERRICK: This is set for next week. I am going to be in a jury trial in another case. I will not be available on the 14th to do this so I would ask for a continuance from the 14th, under any circumstances, just so I can handle the case. [p] This is a very difficult case to prepare for a Motion to Revoke Hearing. The defendant is in Marin County. That is where the case is being prepared for trial. He is being represented by the Marin County's Public Defender's Office. I am expected to defend-- [p] THE COURT: Do you have a date when the trial will be? [p] MR. HERRICK: Yes, October 5th, which is stated in the motion. [p] I ask this case be set to trail October 5th. [p] MISS KLEE: We have discussed this with the District Attorney handling this case in that county. They see no reason why we should not put our motion to revoke on as speedily as possible. [p] MR. HERRICK: I can only remind the Court that there is a no-bail hold on the defendant as a result of this proceeding at any rate. He is not going to go anywhere whether he is in Marin or San Francisco. This Court has him in custody until it resolves this under any circumstances. [p] Submitted. [p] MISS KLEE: Submitted. [p] THE COURT: The Motion to Continue is denied. [p] MR. HERRICK: I will be expected to go next week on this case? [p] I am in trial. [p] THE COURT: The Public Defender's Office has been appointed to represent the defendant. [p] MR. HERRICK: It's been assigned to me. It's my case. [p] THE COURT: I already ruled on it."

The matter came for hearing on Friday, August 14, 1981, before a third judge. Defense counsel's initial remark to the court was that he was not ready to proceed for the following reasons: (1) that week he had been in trial on a "difficult" case, and the previous week he had been in trial on a homicide case; (2) he received the 150-page packet of materials on the Marin County charge on that Monday, including a 70-page preliminary hearing transcript, which he had not yet reviewed due to his trial schedule; (3) because his client had been in custody in Marin County he had discussed neither the case nor the preliminary hearing evidence with him. The court inquired how long counsel would need to discuss the case with his client. Counsel responded that he would need one week to adequately prepare the case and discover whether a defense existed. The court stated it would "pass this matter" for 45 minutes so counsel could talk with his client and report back on the "status of the defense." Counsel replied that he would not be any more prepared in 45 minutes.

After the 45-minute recess, counsel announced he was not ready to proceed, that he had spent the time reading the preliminary hearing transcript, which he had not completed, that he had not yet read his client's lengthy statement to his trial counsel, and that he had not yet compared the police report to the preliminary hearing testimony to see whether there were inconsistencies which would warrant impeachment on cross-examination. Finally, he commented that his client had suggested questions and matters to review in the preliminary hearing transcript, which he had not yet had an opportunity to do. The court then stated it would bifurcate the hearing and just take the victim's testimony. Counsel interjected that he was not prepared to cross-examine the victim. The court then denied the motion for a continuance. Counsel rejoined that since he was...