People v. Adams

[842]

ADAMS, P. J.

Appellant Adams, Clarence Wade, Virgil Porter and Helen Newman were charged by information filed in Yuba County with grand theft of a calf. The trial court appointed counsel to represent Adams, Wade and Porter, Newman being represented by different counsel. Eventually all four defendants pleaded guilty. Adams applied for probation which was denied, and he was sentenced to state prison for the term prescribed by law. No appeal was taken from the judgment, but about two weeks later he filed a notice of motion to vacate the judgment, and for permission to withdraw his plea of guilty and plead not guilty. After a hearing this motion was denied and Adams has appealed.

The grounds upon which the motion was based, and those relied upon here, are that appellant entered his plea of guilty in reliance upon the belief and the assurance of his counsel that his application for probation and the matter of his sentence would be determined upon a full, fair and impartial report by the probation officer of that county, but that the report filed by said officer was biased, untrue and unfair. Appellant argues that the trial court relied upon such report, and the erroneous statements made therein, and that for such reason the judgment should be vacated and he should be permitted to change his plea.

It may be noted preliminarily that a motion to vacate a judgment and to withdraw a plea of guilty is of the nature of an application for a writ of error coram

nolis;

and it is now well established that such an application will be granted only where some fact exists which, had it been known to the court, would have prevented rendition of the judgment, which fact was not lmown to defendant at that time, and which, without fraud, mistake or negligence of the defendant, was not presented to the court. And where fraud, or mistake or negligence are relied upon by an applicant it must be established by clear and convincing evidence.

(People

v.

Adamson,

34 Cal.2d 320-327 [210 P.2d 13] ;