People v. Krug

The following opinion was prepared by the late Mr. Presiding Justice Crail and is adopted and published as the opinion of the court.

THE COURT.

The defendant and a codefendant were charged with the crime of burglary, to which they pleaded “not guilty”. Two months later each defendant changed

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his plea of “not guilty” to “guilty of second degree burglary” and filed applications for probation. Probation was denied and the defendant was sentenced to San Quentin. Thereafter the defendant moved to vacate or modify the judgment, which was denied, and it is from this order the appeal is taken.

In support of his motion the defendant filed an affidavit in which he said that prior to the time of pleading “guilty” he had been promised a jail sentence by certain officers of the police force, and in which he further said, “We talked over our affairs and the recoveries I had and was making, and many times I asked Officers Quinn and Curtis if I was going to get a jail sentence and they said yes. At this time one of my attorneys was Mr. A. Benjamin. He was present at some of these meetings with Officers Quinn and Curtis, when these officers promised to explain to the district attorney and the court about my helping to make these recoveries, and as well, that I had been promised a County Jail sentence. At the time my plea was entered I did so because I was relying on this particular advice and would not have done so had I not been promised that I would get a jail sentence with or without probation. At many and at different times and at the last, I did believe that this was the sentence I would receive and I would not have made the plea that I did make had I not relied on these promises, ...”

The defendant relies upon the case of

People

v.

Schwarz,

201 Cal. 309, 314 [257 Pac. 71], and the cases therein cited, and in that case the court said: “It may be stated from the above authorities that it is now well settled in this state that where on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits, the court in which he was sentenced may after judgment and after the time for appeal has passed, if a properly supported motion is seasonably made, grant him the privilege of withdrawing his plea of guilty and of reassuming the situation occupied by him before a plea of any kind was entered.” It should be noted, however, that the court in the same paragraph also says, “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. ’ ’