People v. Rogers

• Decision Date: 23 April 1957
• Docket Number: Cr. 3255
• Citation: 309 P.2d 949,150 Cal.App.2d 403
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Roy A. ROGERS, Defendant and Appellant.

Page 949

309 P.2d 949

150 Cal.App.2d 403

PEOPLE of the State of California, Plaintiff and Respondent, v. Roy A. ROGERS, Defendant and Appellant.

Cr. 3255.

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

April 23, 1957.

Hearing Denied June, 19, 1957.

Gordon K. Williams, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., William M. Bonnett, Deputy Atty. Gen., San Francisco, for respondent.

PETERS, Presiding Justice.

Defendant, an attorney, was charged with five counts of grand theft, each count being based on the charge that by false pretenses he took money improperly from his law clients. He was tried by the court without a jury, and was found guilty on three of the five counts. He appeals from the judgment of conviction, and from the order denying his motion for a new trial. He makes no attack on the sufficiency of the evidence. His sole contention is that, because of his health, and because he had no attorney, the trial court, as a matter of law, abused its discretion in compelling him to go to trial over his objections, and in refusing him a continuance.

The trial court, between August 18, 1955, and March 12, 1956, granted him 13 continuances, all based on the claim of his ill health. Defendant was present in the courtroom on three of these occasions. The circumstances surrounding each continuance can be summarized as follows:

August 18, 1955: Defendant present in court and arraigned. He waived the right to be tried in 60 days. At the request of his then counsel, 'in view of defendant's physical condition,' the case was continued to September 7, 1955.

September 7, 1955: No appearance by or for defendant, and the matter was continued to September 12th.

September 12, 1955: Defendant's then counsel told the court that defendant was ill, and offered a certificate from defendant's doctor to the effect that defendant was suffering from diabetes, complicated by a heart condition. The case was continued to September 19, 1955.

September 19, 1955: The then counsel for defendant requested a continuance and told the court that defendant was still ill, but 'in probably another ten days they expect that he will be able to get around and probably be able to come to court at that time.' A continuance was granted to September 30, 1955.

September 30, 1955: The then counsel for defendant told the court that defendant was in the hospital and would be incapacitated for at least two weeks. Case continued to October 10, 1955.

October 10, 1955: The then counsel for defendant offered a certificate from defendant's doctor stating that since September 27, 1954, defendant had been under treatment for 'hypertension and diabetes, complicated by a heart condition,' and that defendant would be released for normal activity on about October 22, 1955. The prosecuting attorney required that the court appoint a doctor to examine defendant. The trial court granted this request and continued the case to October 24, 1955.

October 24, 1955: The trial court read from a letter from the court-appointed doctor stating that defendant probably had not had a heart attack, but had diabetes and bursitis. He also stated that satisfactory treatment was difficult. The case was continued to November 7, 1955.

November 7, 1955: The then counsel for defendant referred to another doctor's certificate and requested another continuance. The case was continued to December 7, 1955.

December 7, 1955: The then counsel for defendant read from a letter from defendant's doctor stating that since the doctor's previous examination defendant had 'suffered an exacerbation of his diabetic condition,' and that, in his present condition, it was 'imperative that he be kept at home, and at rest, to prevent any aggravation to his coronary disease.' The case was continued to January 15, 1956 (a Sunday).

January 16, 1956: The then counsel for the defendant requested another continuance. The prosecuting attorney consented, but requested that a court-selected doctor be appointed to examine the defendant. Both requests were granted, and the case continued to January 23, 1956.

January 23, 1956: The trial court read a portion of a letter from the court-appointed doctor to the effect that the doctor had been unable to contact the defendant for the purpose of examining him; that he could not reach defendant by telephone or by visits to his home, where he was supposed to be confined. Defendant's then counsel stated that he intended to move for permission to withdraw as defendant's counsel because 'I can't talk to him or get any cooperation from him either.' The case was continued to January 26, 1956.

January 26, 1956: The court read from a letter from the court-appointed doctor which stated, in part, that the defendant 'is completely disabled physically and is unable to stand trial.' The case was continued to January 31, 1956, so that the doctor could be orally examined.

January 31, 1956: Defendant was present. His then counsel was not present, but pursuant to his formal request to withdraw, such permission, with the consent of defendant, was granted. The district attorney offered to produce witnesses to substantiate his assertions that during January, 1956, defendant conducted his legal business, and drove his automobile. The court-appointed doctor testified that his examination disclosed that defendant had a rapid heart, an enlarged and tender liver, diabetes, and was in a state of partial decompensation. If the diabetes could be controlled, the heart and liver condition would improve. He first estimated that if defendant followed the prescribed treatment he would be able to stand trial in 60 to 90 days, and a little later testified that he could be tried in one or two months. It was his view that defendant should not practice law until his condition improved. The doctor stated the some of the symptoms could be feigned, and that defendant was probably not cooperating with his own doctor in taking care of the diabetes. It was his opinion that, if the defendant did not follow his doctor's orders, he would never be able to stand trial. He opined that treatment with digitalis, which he was not then taking, might so improve the heart condition that he could stand trial in about a month or two months. The doctor stated that the defendant's physical condition was up to him and his doctor, and that if he cooperated in keeping the diabetes under control he could stand trial. The prosecuting attorney summarized the long delay, objected to further continuances, and recommended that a definite date be set for trial. The court warned defendant that he must secure new counsel, which defendant promised to do, and set March 12, 1956, as the definite date of trial. Defendant was warned that if a continuance were requested beyond that date the burden would be on him, and that if another continuance was requested, defendant's doctor must be present for cross-examination, and notice in writing must be given of such request sufficiently in advance so that the prosecuting attorney could prepare a defense.

March 12, 1956: Defendant was not present when the case was called at 10 a. m. but a new lawyer representing defendant was present. He informed the court that defendant did not have regular counsel and that he was appearing specially for the sole purpose of moving for another continuance because of the illness of the defendant. The doctor for defendant testified that he had examined defendant that very morning and found him suffering from a 'severe uncontrolled diabetes, essential hypertension, severe arterioscleroses, obesity, and a hemorrhage into the right sclera,' that is of the eye. The doctor testified that until March 9th defendant 'was getting along fairly well,' but on the 10th defendant's diabetes was 'uncontrolled again,' and he was very nervous. The doctor had ordered him to bed, and was of the opinion that defendant was in no condition to stand trial that morning, but that the diabetes could be 'readily controlled in a period of 30 days, with cooperation.' The doctor stated that for the past two months defendant had been a cooperative patient, but a little later admitted that defendant was obese and had not lost weight, which would indicate that he was not following the prescribed diet. On the morning of March 12th defendant was ambulatory because he had come to the doctor's office and was in condition to drive a car and to walk up stairs. The doctor had no way of knowing whether the prescribed dosage of insulin was being taken, and he admitted that a failure to take the insulin could have caused defendant's present physical condition, and also stated that tension in anticipation of the trial was a factor.

The prosecuting attorney requested that defendant be compelled to present himself at the court that day. After some discussion the bail bondsman was contacted and he agreed to surrender the defendant at 11 a. m. that morning. Defendant appeared shortly after 11 a. m. He stated that, because of his illness, he had been unable to secure counsel, that he was attempting to do so, and requested a continuance. The court pointed out that the request for a continuance by special counsel had already been denied, ascertained that defendant was an attorney, and ordered that the trial proceed. Defendant stated that 'I object to the proceeding in the absence of counsel and in view of my condition.' The defendant then waived a jury trial, and asked that the record show that he had no records with him. He later, however, offered various exhibits for identification.

For the balance of that day and for the next two succeeding days the defendant conducted a vigorous defense. He offered numerous objections to testimony, many of which were sustained. He conducted effective cross-examination. Twice the trial judge commented on defendant's competence. On the afternoon of the first day of the trial, when the court suggested a 4:30 p. m. adjournment, the defendant...