People v. Grgurevich

ASHBURN, J.

Defendants Boris Grgurevich and Stanley H. Mendell appeal from an order denying a motion to set aside their pleas of guilty upon which they had been sentenced to state prison for the term prescribed by law.

The information was in two counts, the first of which charged defendants with possession of marijuana and the second with possession of heroin. Initially, each defendant entered a plea of not guilt to each count. When the case was called for trial, Mr. J. T. Forno, who was attorney for defendant Grgurevich, stated to the court that his client wished to withdraw his plea of not guilty to count I and to enter a plea of guilty to the same. Mr. William Hall, who was attorney for defendant Mendell, made the same statement on behalf of his client. The deputy district attorney then asked defendant Grgurevich a series of questions and received answers as follows: “Mr. Lewis: Are you pleading guilty freely and voluntarily? Defendant Grgurevich: Yes. Mr. Lewis : Has anyone made any promise to you of any kind? Defendant Grgurevich: No. Mr. Lewis: Are you pleading guilty because you really are guilty? Defendant Grgurevich: Yes. Mr. Lewis: You are accused by the District Attorney of Los Angeles County in Count 1 of Information 184550 with violation of section 11500 of the Health and Safety Code of California, a felony, committed by you on the 16th day of September, 1956, in that you had in your

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possession the flowering tops and leaves of Indian hemp, also known as marijuana; how do you now plead to that offense, guilty or not guilty ? Dependant Grgurevich : Guilty.” The same questions were put to defendant Mendell, who gave the same replies. The court then granted them leave to file application for probation and continued further proceedings until January 9, 1957. At that time probation was denied, each defendant was sentenced to prison upon count I, and count II of the information was dismissed as to each.

On January 18, 1957, said defendants gave notice of motion to vacate their pleas of guilty, supported by their respective affidavits. That of Grgurevich says:

“

[T]hat your affiant was* not guilty of the offense as charged and believed that he was not guilty of said offense, but that in spite of such statements to his counsel Joseph Forno, your affiant was informed by his counsel that if he would plead guilty he would be assured of straight probation; that your affiant’s free will was over-reached and your affiant was in a very nervous and upset condition; that your affiant further did not realize the consequences of a plea of guilty at the time it was entered. That your affiant is unfamiliar with courtroom procedure and believed in truth and in fact that he would receive probation in exchange for his pleading guilty to the offense as charged; that your affiant believes he is not guilty of the offense and has talked to his present attorney and is informed and believes and upon such information and belief alleges that he has a meritorious defense and that the law enforcement officers made an improper search of his premises, and that if the facts were brought before the Court your affiant would not be convicted due to the illegal conduct on the part of the police officers who arrested him.” Mendell’s affidavit is in identical language except for the name of counsel. In the main, the averments are a series of conclusions. Neither the notice of motion nor the affidavit charges or implies that anyone attached to the district attorney’s office or the court did or said anything directly or indirectly supporting, inducing or encouraging, any of the things alleged to have been stated to the defendant by his own attorney. During argument of the motion the attorney then representing defendants, said: "We are not contending, we are not laying our stress upon any extrinsic fraud or any promises or this or that or the other thing. . . . These men are not lawyers. They were depending- upon the advice to be given to them by their lawyers.”