People v. Levine

FOX, J.

In an information filed August 15, 1951, defendant was charged with violating section 11715 of the Health and Safety Code in three counts. In count I defendant was accused of such violation on or about June 4, 1945, in that he unlawfully issued a prescription bearing a forged and fictitious signature for a narcotic. It is further alleged that defendant was absent from and not an inhabitant of, nor usually a resident within, the State of California for the

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period from July 1, 1945, to April 30, 1951. The information further charged defendant with conviction of a prior felony, to wit, counterfeiting, and that he served a term of imprisonment therefor in the federal prison. The other counts eharg’e like offenses alleged to have been committed upon different dates. Defendant initially entered his plea of not guilty. Thereafter, by leave of court, defendant, with his counsel, withdrew his plea of not guilty and entered his plea of guilty as charged in count I. He admitted the prior conviction and also admitted being absent from the state, as alleged in the information. Defendant’s application for probation was denied and the court sentenced him to the state prison.

On this appeal defendant makes two contentions: (1) that his plea of guilty was gained through extrinsic fraud and collusion, and (2) that the information filed against him shows that the statute of limitations barred his prosecution. There is no merit in either of these contentions.

Defendant asserts that he was induced to change his plea of not guilty to one of guilty, and to admit being out of the State of California as alleged in the information, by his attorney who was purportedly told by the trial judge that the judge would grant defendant probation if he would change his plea of not guilty to guilty. The record brought up on this appeal does not, however, disclose any factual foundation for defendant’s claim of fraud and collusion. He did not make any showing to the trial court that he had been thus imposed upon. The trial court, therefore, had no opportunity to pass upon his charges; consequently, there is nothing before this court to review on that question.

(People

v.