In Re Breen

California Court of Appeal Jul 18, 1958 No. Crim. 2869Published

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Holding. A criminal judgment is invalid when a plea of guilty is entered by counsel rather than by the defendant personally, as required by Penal Code section 1018. Consequently, the defendant must be remanded to the trial court for further proceedings.

Issues

Whether a guilty plea entered by counsel instead of the defendant personally violates Penal Code section 1018.
Whether a judgment based on a plea entered by counsel is invalid.
Whether a petitioner should be discharged or remanded when a plea is invalid.

Disposition. Remanded

Quotations verified verbatim against the opinion

“the provisions of section 1018 of the Penal Code were violated in that the plea was not put in by the defendant himself.”

“The result is that the judgment was invalid as were all proceedings subsequent to the entry of the plea by counsel.”

“the writ is discharged and the petitioner is remanded to the custody of the sheriff of Napa County for further proceedings in accordance herewith.”

THE COURT.

On September 5, 1953, petitioner herein, responsive to an information charging him with forgery, was arraigned in the Superior Court in Napa County. He was represented by counsel who announced that a plea would be entered at that time. The following occurred: “The Court: What is your plea? Mr. Shifflett [Counsel for Defendant] : The defendant pleads guilty, your Honor. The Court: The Clerk will please enter a plea of guilty. Do you move for probation ? Mr. Shifflett: We would like to at this time move for probation.” The matter was referred to the probation officer and thereafter probation was granted for a term of two years and the pronouncement of judgment was suspended.

[236]

Prior to the expiration of the term of probation the probation officer moved the court that probation be revoked. This motion was denied, but an added period of two years’ probation was ordered, petitioner was incarcerated in the county jail for four months, and was ordered to pay a fine. Prior to the expiration of the extended period the probation officer again moved the court that probation be revoked for violation. This motion was also denied. A third time the probation officer moved for revocation and this time the court revoked probation and proceeded to sentence petitioner to the Department of Corrections for the period prescribed by law. Petitioner is presently confined pursuant to that judgment, but has taken an appeal therefrom which is pending in this court.

It appearing from the petition herein and the return to the order to show cause that petitioner’s plea to the charge of forgery was not entered by himself personally but by counsel, this court issued its writ and the matter has been heard.

The foregoing recitals of the proceedings on arraignment are conceded to be true, with the result that the provisions of section 1018 of the Penal Code were violated in that the plea was not put in by the defendant himself.

(In re Brain, 70

Cal.App. 334 [233 P. 390];

People

Wills,

In Re Breen

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THE COURT.

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