People v. Costello

In a court trial defendant was convicted of two offenses of grand theft. It was alleged and found to be true that defendant had suffered a prior felony conviction of issuing a cheek without sufficient funds. A third count of the information charging issuance of a check without sufficient funds was dismissed on defendant’s motion under section 995, Penal Code.

Trial by jury having been waived, the case of the People was submitted on the testimony and exhibits introduced at the preliminary examination. The court expressed doubt as to the present sanity of the defendant, suspended proceedings and appointed two medical experts to examine defendant and report their findings to the court. Subsequently, after considering the reports and defendant’s medical record, the court found that defendant was presently sane, and trial was resumed. Defendant testified and introduced evidence consisting of numerous exhibits. Defendant made a motion for a new trial and filed an application for probation, both of which were denied. The present appeal is taken from the judgments of conviction.

Although defendant was represented by counsel at the trial, he prosecutes his appeal in propria persona. The offenses of which defendant was convicted consisted of: The receipt from one Byron H. Brown of $3,294.25 as the purchase price of an automobile; the car was delivered to Mr. Brown and when he asked whether anything more was due, defendant

The first contention of defendant to be considered is that he was denied a speedy trial. The record shows that he

The second point raised by defendant is that at the time of the preliminary examination he was not represented by an attorney and that he was not and had not been informed .of his right to be represented by counsel. A transcript of the docket of the municipal court of the proceedings had therein . has been filed as a supplement to the record on appeal. It is shown by the record that at the time defendant was arraigned he was represented by an attorney and the court informed defendant of the charges against him and of his right to the aid of counsel in every stage of the proceedings. At the time of the preliminary hearing the court stated to defendant that it was understood he did not have an attorney, which fact was affirmed by defendant. Nevertheless defendant announced his willingness to proceed. It therefore appears that defendant had been sufficiently advised of his right to the aid of counsel, had been so represented, and for some reason not disclosed was willing to proceed with the preliminary examination without the aid of counsel. There is no merit in the contention that he was not sufficiently advised as to his rights. (People v. Stem, 23 Cal.App. 108 , 113 [ 137 P. 271 ].)

The following facts were established by the evidence. Brown parted with his money upon the strength of defendant’s representation that he had a fleet deal with General Motors under which he was able to purchase a new car for less than the list price, and that Brown gave him the money to use in the purchase of a ear. There was no representation or understanding that defendant had the car to sell; the money was entrusted to defendant with which to acquire the car. The same is true as to defendant’s transaction with Mr. Dennee. His money was entrusted to defendant to be used in purchasing a car which would be shipped from Detroit. Defendant’s representations were false; he did not use or attempt to use the money in accomplishing the purpose for which it had been entrusted to him. It was a reasonable deduction

It was not a defense to the grand theft from Brown that he received an automobile, the purchase price of which he paid to Lumley, and that he was later reimbursed by defendant to the extent of $1,900. Neither was it a defense to the charge in the Dennee transaction that at some unstated time defendant offered to transfer to Dennee an automobile of a model different from that which Dennee had ordered and paid for. The offenses were complete, and the offers of restoration, in whole or in part, were only matters which the court might consider in mitigation of punishment. (See People v. Kay, 34 Cal.App.2d 691 , 696 [ 94 P.2d 361 ].)

We discern no merit in the contention that defendant was deprived of his right to be confronted by witnesses at the trial through the use by the People of the evidence taken at the preliminary examination. Defendant was represented by counsel at the trial and in stipulating to the use of the preliminary transcript he waived his right to be confronted by the witnesses against him. Although defendant had no attorney at the preliminary, he cross-examined the witnesses. As previously shown, he waived his right to be represented by counsel at the preliminary. It was a right that could be waived and defendant cannot now retract the waiver. (In re Connor, 16 Cal.2d 701 , 709 [ 108 P.2d 10 ]; People v. O’Neill, 78 Cal.App.2d 888 , 891 [ 179 P.2d 10 ]; People v. Jewett, 84 Cal.App.2d 276 [ 190 P.2d 330 ].)

There is no merit in the contention that the court treated lightly some of the evidence in the case and disregarded it, nor in the contention that the district attorney was guilty of misconduct through inquiry as to the amount of money defendant had in bank to cover a check that he had written.

After sentence was imposed in the present ease, the court revoked probation in a former case in which proceedings had been suspended and defendant sent to the Camarillo State Hospital. Defendant was sentenced under the former judgment, the sentence to run concurrently with that imposed on counts one and two of the present information. The point is urged that the court was without jurisdiction, since the former proceedings had been before another judge. There was no lack of jurisdiction. (People v. Connolly, 103 Cal.App.2d 245 [ 229 P.2d 112 ].) Moreover, no appeal in the former case is before us, nor does it appear that one was taken.

Wood (Parker), J., and Vallée, J., concurred.

A petition for a rehearing was denied November 23, 1951.

A petition for a hearing by the Supreme Court was dismissed for want of jurisdiction, on January 3, 1952.