People v. Donegan

YORK, P. J.

In a complaint filed in the Municipal Court of the City of Long Beach, defendants were charged in two counts with commission of the crime of burglary. Upon arraignment both defendants were represented by counsel and regularly pleaded guilty to the offenses charged. Thereupon, the cause was certified to the Superior Court of Los Angeles County for sentence, pursuant to the provisions of section 859a of the Penal Code. Defendants applied for probation and in due course probation was granted to the defendant Donegan but was denied as to appellant, who was sentenced to Tehachapi. Judgment was entered on September 29, 1941.

On October 15, 1941, appellant employed her present counsel, who secured a thirty-day stay of execution and on November 13, 1941, filed a notice of motion to vacate said judgment praying that appellant either be placed on probation or be permitted to change her plea to “not

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guilty” so as to allow her to be tried for the offenses charged against her.

• Accompanying said motion was appellant’s affidavit to the effect that she had employed her former counsel because she was told that he was not only competent but that he had influence with the Long Beach office of the district attorney as well as the courts, and that he was related to one of the deputy district attorneys; that she was persuaded to plead guilty by her said attorney upon the representation that he had consulted with the officers and the deputy district attorney in charge of the case and that, in his opinion as an attorney, she • would not receive more than a thirty-day jail sentence; that she would not have received a greater sentence if she had been tried; that her plea of guilty was induced by fear and persuasion, and that regardless of her guilt or innocence she would not have entered a plea of guilty if she had known, suspected or believed that she would receive a penitentiary sentence.

Counter affidavits were filed by the prosecution stating that appellant’s plea was entered freely and voluntarily and without any persuasion exerted by her attorney; that said attorney had not discussed the case with any member of the district attorney’s office; that appellant assisted in the return of approximately $5,000 worth of merchandise to the lawful owners in an effort to make restitution; that before sentence appellant was advised by her attorney that the probation department had recommended that probation be denied her and that she would probably be sentenced to Tehachapi; that her attorney did not advise her that she would not be compelled to serve more than thirty days in the county jail.