People v. Greene

• Decision Date: 11 December 1951
• Docket Number: Cr. 4685
• Citation: 108 Cal.App.2d 136,238 P.2d 616
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. GREENE.

Page 616

238 P.2d 616

108 Cal.App.2d 136

PEOPLE v. GREENE.

Cr. 4685.

District Court of Appeal, Second District, Division 1, California.

Dec. 11, 1951.

Frank Porter Greene, Pro. Per.

Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was charged in four counts with the crime of robbery and in a fifth count with the offense of kidnapping for the purpose of robbery while armed with a deadly weapon. It was further alleged in each count that defendant had suffered a prior conviction of the crime of robbery as well as a prior conviction for violation of section 503 of the Vehicle Code of the State of California, both felonies. Defendant pleaded not guilty to all counts of the information, not guilty by reason of insanity, and denied the alleged prior convictions. Subsequently however, the prior convictions were admitted. Trial by jury being waived the cause was submitted to the court resulting in a decision finding defendant not guilty of kidnapping as charged in Count V and guilty of robbery as charged in Counts I, II, III and IV. Defendant was also found to have been sane at the time of the commission of the offenses and sane at the time of trial. From the judgments of conviction defendant prosecutes this appeal.

Since defendant first challenges the validity of his convictions on the ground that he was not afforded a speedy trial, we here set forth the proceedings in chronological order as reflected by the Clerk's Transcript:

'June 22, 1950--Information filed.

'June 26, 1950--Defendant arraigned; Public Defender appointed as defendant's counsel; case continued until July 10 at defendant's request.

'July 10, 1950--Defendant entered a plea of not guilty as charged in the information and denied the prior conviction and cause set for trial for August 7, 1950.

'August 7, 1950--W. W. Larsen was substituted as attorney for defendant. At this time a copy of the preliminary transcript and a copy of the information had already been delivered to defendant personally. On motion of defendant, the case was continued to September 11, 1950.

'August 21, 1950--Plea of not guilty by reason of insanity entered by defendant and psychiatrists appointed.

'September 11, 1950--Jury trial was waived; defendant offered a stipulation to submit matter on preliminary transcript and requested a continuance to October 2, 1950. The case was then continued to October 9, 1950. It was stipulated that the cause could be submitted on the testimony contained in the transcript of the proceedings had at the preliminary examination. Jury was waived as to the issue of insanity and it was stipulated that the court might determine that matter from the reports of the psychiatrists.

'October 9, 1950--At defendant's request, the matter was continued to November 13, 1950.

'November 13, 1950--At defendant's request the case was continued to January 8, 1951.

'January 8, 1951--At defendant's request case continued to January 15, 1951.

'January 15, 1951--It was stipulated that the issue of insanity could be submitted upon the reports of the three court-appointed psychiatrists and that said reports could be considered as evidence upon the merits of the case. Appellant was re-arraigned and admitted the prior convictions as alleged. The court stated that he had read the transcript and that it was clear that appellant had pointed a gun at each of the victims. He found, however, that there was no evidence that the gun was loaded; that it was a dangerous but not a deadly weapon. Defendant was found sane at the time of the commission of the offenses and, pursuant to stipulation, also presently sane. Leave to file application for probation was granted.

'February 13, 1951--Application for probation was denied and defendant was sentenced to the state prison for the term prescribed by law, sentences to run concurrently.'

We deem it unnecessary to here set forth a statement of the facts which gave rise to this prosecution, as disclosed by the record, because it is not contended that the evidence is insufficient to justify defendant's conviction on the four counts of robbery charged against him, or that he was not sane at the time of the commission of said offenses and at the time of his trial.

Appellant's first contention is that the judgments should be reversed and the cause ordered dismissed on the ground that the action was not brought to trial within 60 days after the filing of the information. Penal Code, sec. 1382, subd. 2.

The right to a speedy trial to which an accused is entitled under Article I, sec. 13, of our state constitution, and that a trial must be had within the time provided by subdivision 2 of section 1382 of the Penal Code, is a right which may be waived. Appellant herein, not only failed to claim this right in the trial court and acquiesced in the continuances granted therein, but, as reflected by the record, he sought such postponements. In fact, on the 60th day after the filing of the information, that is on August 21, 1950, appellant entered a plea of not guilty by reason of insanity and psychiatrists were appointed.

The trial was originally set for August 7, 1950, 46 days after the information was filed. Thereafter, six continuances were had until the matter was finally disposed of on January 15, 1951. Each of these continuances was had at the request of appellant or his counsel. No objection having been made in the trial court to postponements, and no motion having been made under section 1382 of the Penal Code to dismiss, such a motion cannot now be made. People v. Scott, 74 Cal.App.2d 782, 783, 784, 169 P.2d 970; People v. Dale, 79 Cal.App.2d 370, 378, 179 P.2d 870. The factual situation here present is much different from that presented in the case of People v. Fegelman, 66 Cal.App.2d 950, 153 P.2d 436. In that case the accused very strenuously objected to the continuance beyond the 60-day period, while in the case at bar, appellant not only did not object, but himself sought the continuances. While it is true that appellant was not personally present on October 9, 1950 when, at the request of his counsel, the cause was continued to November 13, he was present on the last-mentioned date when, at his request, the cause was continued to January 8, 1951, on which date, with him present, a further continuance was ordered at his request until January 15, 1951.

It is next contended by appellant that at the preliminary examination he 'was denied the right to secure counsel and was severely rebuked by the presiding magistrate for seeking counsel'.

An examination of the proceedings had at the preliminary examination does not support appellant in this contention. He makes no claim that at his arraignment he was not informed of his legal rights. It must therefore, be presumed that when the magistrate advised him of his 'legal rights' at...