People v. Gotto

SHINN, P. J.

Clifford A. Gotto and Wayne L. La Mell were jointly charged with two offenses of robbery. They pleaded guilty in the Municipal Court of the Long Beach Judicial District to Count I. Count II was dismissed. They were certified to the superior court as having pleaded guilty and having admitted being armed; in the superior court it was found that the offense was robbery of the first degree and defendants were sentenced to state prison. They made motions for leave to withdraw their pleas of guilty, which were denied. They filed a petition for writ of error

coram nobis,

which also was denied. They appeal from the judgments.

The sole question for decision relates to rights and statutory procedure in the matter of probation. The defendants contended in the trial court and they contend here that they were without effective legal advice and were denied the right to file applications for probation. It was alleged in their petitions for vacation of the judgments that the attorney who appeared for them, H. W. Funke, was not employed by them and conferred with them for no more than one minute in the jail the day preceding the preliminary hearing and the pleas of guilty; they were not advised as to the right either of them had to apply for probation or whether either of them was eligible for probation. These allegations do not appear elsewhere in the record, and need not be considered. There is no appeal from the order denying the motion to vacate the judgments. With respect to the proceedings in open court we must be guided by the record.

The record discloses the following: In the municipal court it was stated by the deputy district attorney to Gotto that if either defendant was armed with a deadly weapon at the time of the robbery both were guilty of being armed. La Mell, when questioned, admitted that he had possession of a loaded

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revolver. Gotto was not questioned whether he had a gun and there was no suggestion that he had one. Following the statement of the deputy district attorney to Gotto each defendant pleaded guilty and admitted that he was armed.

When the case was called in the superior court another deputy district attorney stated to the court that the certificate of the magistrate indicated that each defendant had pleaded guilty and that both defendants had admitted that they were armed with a deadly weapon. Nothing more was said on this subject. The only evidence in the municipal court or the superior court was that La Mell had a loaded revolver. Neither defendant was asked in either court whether Gotto had a gun. It appears from the record that at the time of sentence the judge believed that each defendant had admitted that he (himself) was armed with a revolver. The attorney general says in his brief, “Since each of the defendants admitted, as shown by the record, that at the time of robbery each was armed with a deadly weapon, neither of the defendants are eligible for probation.” This is the statement that was made to the trial court. If it is intended as a statement that Gotto admitted that he, personally, carried a gun and not merely that he was armed, it is not supported by the record. The attorney general says also that the court could have believed, if there was only one gun, that it was passed back and forth between the two defendants. He refers to nothing in the record, and it contains nothing, which tends to support the statement.