People v. Flores

FOX, J.

Defendant appeals from the denial of his petition for writ of error

coram nobis.

Defendant was charged with the commission of seven felonies : four were kidnapping for the purpose of robbery; one was rape (Pen. Code, § 261, subd. 3) ; the other two were respectively, violations of Penal Code, sections 286 and 288a. In all counts it was alleged that defendant was armed with a deadly weapon,—a knife. In each of the kidnapping counts it was alleged that the victim was subjected to bodily harm by defendant.

At defendant’s arraignment on September 20, 1954, E. D. McPherson, Esq., appeared as counsel for defendant for the purpose of arraignment only. Arraignment and plea were

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continued to December 27. On December 14, defendant appeared by the public defender. Thereafter he was represented by Gladys Towles Root, and Herbert Grossman and Joseph M. Rosen of her office. On January 13, 1955, with Mr. Gross-man at his side, he entered a plea of not guilty.

Investigation disclosed that asserted alibi witnesses would not support defendant’s claim of an alibi. Mr. Grossman advised defendant that in his opinion “it is a very bad case from your standpoint. The evidence here is against you, and you have no evidence in your behalf, or very little evidence.” Mr. Grossman also told him “there is a possibility of a death penalty in this case.” Later, defendant told Mr. Rosen: “The truth of the matter is that I committed these offenses that I am charged with. I have denied it up to now . . . because I don’t want my wife to know.” Thereupon Mr. Grossman, with defendant’s consent, sought approval of the district attorney for pleas of guilty to two counts of robbery. The district attorney would not accept such pleas. He insisted on a plea to one count of kidnapping for the purpose of robbery, with an admission that the victim was subjected to bodily harm, and to one other count. Defendant inquired about the possibility of the death penalty being imposed. Gross-man replied: “I will not permit you to enter that [plea] unless I am certain in my mind, as much as it is possible for anyone to be certain . . . that you will not receive the death penalty.” Defendant thereupon entered a plea of guilty to one of the kidnapping counts and to the charge of rape. On the kidnapping charge the court sentenced him to life imprisonment without possibility of parole (Pen. Code, § 209), and on the rape count to the state prison for the term prescribed by law, that sentence to run concurrently with the other.