People v. Gottlieb

WHITE, J.

In a complaint filed in the Justice’s Court of Pasadena Township, appellant was accused of the crimes of burglary, grand theft and attempted robberies, all felonies, and pleaded as counts I, II, III and IV respectively, in said complaint. The record shows that upon his arraignment before the magistrate on October 1, 1937, appellant was represented by counsel; that the magistrate delivered to appellant a copy of the complaint and informed him of his right to the aid of counsel, whereupon appellant informed the court of the name and presence of his counsel. The record further shows that thereupon the magistrate read the complaint in question to appellant and inquired of him whether he pleaded guilty to the offenses charged (sec. 859a, Pen. Code), or whether he desired to have a preliminary examination thereon. The record discloses further that appellant thereupon, in the presence of his counsel, and with the consent of the magistrate and the district attorney, pleaded guilty to the offenses charged in counts I, II and III, while count IV was

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dismissed on motion of the district attorney. The committing magistrate then certified the cause to the Superior Court of Los Angeles County. On October 4th, appellant appeared before the superior court without counsel, and the public defender was appointed to represent him. Thereupon appellant orally applied for probation, and hearing thereon, as well as the pronouncing of judgment and sentence, was continued to October 18th. On the last-named date appellant, accompanied by his counsel, again appeared in the superior court, at which time the court found the burglary charged in count I to be burglary in the second degree, denied appellant’s application for probation, and pronounced concurrent judgments committing appellant to state prison on each of the three felonies. On November 8, appellant filed a “Notice of Motion to Open Judgment”, by which application was made to the court for an order “vacating and setting aside said judgment and permitting the said Kenneth Smith to defend the said action in so far as count III of said information is concerned”. Upon the same day, this motion was argued and by the court denied. Execution of the sentence was stayed for thirty days.

On December 10th another petition was filed by appellant asking for the same relief as that sought in the previous petition of November 8th. In support of these petitions there ivere filed an affidaAÚt and two letters attesting to the previous good character of appellant, calling attention to his youth, and otherwise setting forth reasons why in the opinion of the affiant and the writers of the letters, leniency should be extended to appellant. In his petition appellant averred that he was but twenty-one years of age; had never before been charged with any criminal offense; that he was living with his parents, and since leaving school had regularly contributed toward the support of his parents and three younger children in the family; that he had made application for a position as a truck driver, but was advised by his physician that it would be dangerous for him to assume such a position until he had first been operated upon for threatened appendicitis, Avhich operation would cost $100; that he was aware of the financial inability of himself and his family to pay for such operation; that by reason of the foregoing, when he became acquainted with his codefendant, who was an ex-convict, he “came under the malign influence of the eode