People v. Northcutt

BARNARD, P. J.

The defendant appeals from a judgment of conviction on a charge of bringing embezzled prop

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erty, an automobile, into the State of California, in violation of the provisions of section 497 of the Penal Code.

The sole ground, of appeal is that the trial court abused its discretion in denying the appellant’s request to be allowed to withdraw his plea of guilty and enter one of not guilty. The appellant relies upon

People

v. Schwarz, 201 Cal. 309 [257 Pac. 71], and

People

v.

Grant,

97 Cal. App. 60 [274 Pac. 1005, 275 Pac. 838], In the first of these cases the court said that it was well settled that where on account of duress, fraud or other fact overreaching the free will and judgment of a defendant he is deprived of a trial on the merits, the court may, if a properly supported motion is seasonably made, grant him the privilege of withdrawing a plea of guilty and entering one of not guilty, but that “this exceptional remedy applies only where no trial has been had on the merits and only upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes”. In that case it was held that it was the duty of the court to permit a change of plea where the defendant had made a full statement or confession to a district attorney in consideration of a promise of immunity and had entered a plea of guilty in reliance upon such an agreement, which had not been kept. A similar holding is found in

People

v.

Grant, supra,

where it also appeared that the defendant was not guilty of the charge set forth in the information and, if guilty at all, was guilty of a minor infraction of the Motor Vehicle Act. It is well settled that the court has a wide discretion in the matter of granting or denying permission to withdraw a plea of guilty and to substitute therefor a plea of not guilty, that such an order will not be .disturbed except upon a strong and convincing showing that a defendant has been deprived of his legal rights, and that the mere fact that a defendant hoped or believed, or was led by his counsel to hope or believe that he would receive a milder punishment by pleading guilty is not, in itself, sufficient to require the granting of a request for permission to change a plea of guilty to one of not guilty.