People v. Smith

California Court of Appeal Oct 1, 1953 No. Crim. 5027Published

Before: White

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Holding. A defendant cannot vacate a guilty plea based on the alleged bad advice or misrepresentations of private counsel where no state officer participated in the deception, nor can the writ of error coram nobis be used to correct errors that could have been addressed via a motion for a new trial or appeal.

Issues

Whether a guilty plea induced by the alleged bad advice of private counsel constitutes grounds for a writ of error coram nobis.
Whether the writ of error coram nobis is available to correct errors that could have been raised through a motion for a new trial or an appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Mere advice and persuasion or the expression of matters of opinion by his own attorney will not suffice to vitiate the plea.”

“It is established law that the mere advice or assurances by a private attorney will not vitiate a plea entered in reliance thereon”

“The writ of error coram nobis may not be used to correct errors which occur in the trial court and which could have been reached by motion for a new trial or an appeal from the judgment”

WHITE, P. J.

On November 25, 1952, an information was filed by the District Attorney of Los Angeles County wherein defendant was charged in count I with the crime of grand

theft;

count II accused him of a violation of section 503 of the Vehicle Code, and in count III defendant was charged with a violation of section 496 of the Penal Code, in that he unlawfully bought and received a certain 1948 Buick automobile knowing that the same had been stolen. It was further alleged in the information that defendant had suffered two prior felony convictions, for each of which he had served a term of imprisonment in the state prison.

On November 28, 1952, defendant, with his counsel present, was arraigned, waived the reading of the information and pleaded not guilty to each of the charges therein contained. Trial was set for January 9, 1953. On January 6, 1953, defendant, accompanied by his counsel, appeared in court and upon his motion the cause was advanced to that date from January 9th. Thereupon, with leave of court, defendant withdrew his plea of not guilty previously entered to count III and entered his plea of “Guilty as charged in Count 3

[533]

of the information.” At that time, defendant also admitted the two prior convictions alleged in the information. Defendant requested, and was granted, leave to file an application ■ for probation. On January 29, 1953, probation was denied and judgment and sentence rendered as to count III of the information. Counts I and II of the information were dismissed.

On February 16th, defendant, represented by new counsel, filed notice that he would move to set aside the judgment, sentence and plea of guilty. On February 25, 1953, motion to set aside the judgment, sentence and plea of guilty was heard and denied.

Defendant now prosecutes this appeal from the order of the trial court denying his motion to set aside and vacate the judgment.

In support of his motion to set aside his plea of guilty, and the judgment and sentence, defendant presented two affidavits, one by himself and the other by his father.

People v. Smith

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WHITE, P. J.

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