People v. Delasantos

WARNE, J. pro tem.

*

On March 21, 1958, a complaint was filed charging the appellant with seven counts of issuing checks without sufficient funds with intent to defraud. (Pen. Code, § 476a.) The complaint also charged two prior convictions consisting of a forgery conviction in 1947 and a robbery conviction in 1949.

Appellant, on being arraigned in the Municipal Court for the Santa Rosa Judicial District of Sonoma County, pleaded guilty as to each of the seven counts and admitted the two prior convictions. At that time he was represented by counsel appointed by the court who was also appointed to represent him in the superior court.

Upon his appearance in the superior court on April 25, 1958, appellant and his attorney requested a continuance for the purpose of permitting investigation and report of the probation officer. On May 9, 1958, the trial court heard arguments on the motion and determined that because of appellant’s two prior felony convictions he was not eligible for probation (Pen. Code, § 1203), and at that time appellant was granted one week’s continuance in order to make a motion for change of plea. On May 16, 1958, appellant’s motion to withdraw his plea of guilty and enter a plea of not guilty was denied. Probation was then ordered denied, and judgment was entered committing appellant to imprisonment in the state prison for the term prescribed by law. The trial court ordered that the sentences on all counts run concurrently. Defendant appeals from the judgment.

The record of the oral proceedings shows that on May 9 counsel, in arguing for the continuance, stated that he, as appellant’s counsel, learned after appellant had entered his plea of guilty that no complaint had been made by the persons to whom the checks had been issued, and on May 16, 1958, he stated to the trial court that following the continuance he had “talked to three other complaining witnesses ... to whom he had not talked prior to the Defendant’s plea of guilty.” He stated that “it was determined that they were

[216]

unaware of any criminal proceedings pending ...” pne of the witnesses had stated that he knew at the time he accepted the check that the defendant had no money and that on many prior occasions this person had always been able to obtain his money through the sheriff's office. Upon this statement alone counsel for appellant requested that appellant be permitted to change his plea, the ground being that the information then available to counsel indicated that these checks were accepted with knowledge that there were no funds to cover them. However, counsel indicated to the court that he was unable to talk with some of the remaining complaining witnesses.