In Re Williams

THOMPSON, J.

By means of a writ of habeás corpus the petitioner seeks to procure his release from state prison. By an information filed in San Bernardino County he was charged, under section 4532 of the Penal Code, with escaping from the custody of the sheriff and with two prior convictions of other offenses. He pleaded guilty of the principal felony and admitted the prior offenses as charged in the information. The court found him guilty of the crime of escaping from the officer and guilty of two prior felonies. January 3, 1945, he was sentenced to San Quentin State Prison for the term prescribed by law. No appeal was taken from that judgment.

It is contended that the petitioner was wrongfully determined to be an habitual criminal as provided by section 644 of the Penal Code, for the reason that one alleged prior offense of conviction of “auto theft” in Oklahoma in 1923, without proof of the value of the automobile, was not then a felony under the statutes of California, and it was therefore wrong

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fully considered in determining that he is an habitual criminal. The petition further asserts that “It was stated and understood that he [the defendant] would not be adjudged an habitual criminal if he did so plead,” and that the court abused its discretion in not permitting the defendant to withdraw his plea of guilty and enter a plea of not guilty of the-principal offense charged. The answer to the petition for a writ of habeas corpus specifically denies that it was “stated or understood” that the defendant would not be adjudged to be an habitual criminal. It does not appear when the application to change defendant’s plea was made. No evidence of any showing upon that application in the trial court appears in the record. No evidence was adduced at the hearing in this court upon that issue. That point was not even urged by the petitioner in this court or in his points and authorities filed with the petition.

The court did not err in denying defendant’s motion to change his plea of guilty to that of not guilty. The petitioner does not now, and never did contend that he was not guilty of the principal offense of feloniously escaping from the custody of the Sheriff of San Bernardino County. In the absence of evidence to the contrary we must assume that no evidence was adduced in the trial court upon that application for change of plea. Having failed to offer proof in this court in support of that allegation of the petition, and having failed to mention that issue in his points and authorities filed in this court, or upon the oral argument, we must assume that petitioner abandoned that issue. The authorities are uniform to the effect that the trial court has a sound discretion, under section 1018 of the Penal Code, to grant or deny defendant’s motion to withdraw his plea of guilty and to substitute therefor a plea of not guilty, even before judgment is pronounced. The ruling of the court thereon will be sustained unless an abuse of discretion is clearly shown.