People v. Coe

DORAN, J.

Defendant was charged in an information with the crime of grand theft. A plea of not guilty was entered, and the matter was set for trial on December 21, 1937.

[596]

On that date defendant’s counsel withdrew from the case and the public defender was appointed in Ms stead. The trial was reset for January 27, 1938, at which time defendant withdrew his plea of not guilty and entered a plea of guilty, orally applying for probation. Said application for probation was denied on February 15, 1938, and defendant was sentenced. Thereafter, on March 7, 1938, defendant filed a “Petition for a Writ of

Coram Nobis”,

which in effect was merely a motion to vacate the judgment and for leave to withdraw his plea of guilty for the purpose of entering a plea of not guilty. (See

People

v.

Vernon,

9 Cal. App. (2d) 138, 141 [49 Pac. (2d) 326].) Said motion was supported by an affidavit executed by defendant, which in part read as follows: “ . . . affiant pleaded guilty, solely and simply by reason of the fact that he was under the impression that he had not theretofore been convicted of a felony. That in the State of New York he had been convicted of the crime of forgery and granted probation and informed by the Court that if he lived up to the terms of his probation, he could come in at the end of his term of probation ask that the Complaint theretofore filed, be dismissed and that thereafter he could truthfully say that he had never been convicted of a felony. That affiant lived up to the terms of Ms probation, that he made application for a dismissal, that said dismissal was granted and that affiant was informed, and that at all times believed that he had not been convicted of a felony. That had it not been for such belief affiant would not have entered a plea of guilty and had affiant been tried by a jury affiant would have been acquitted and found not guilty of the crimes charged in the above entitled case.”

The motion was denied, from which order defendant appeals.

It appears from the record of the proceedings on the aforesaid motion that the defendant had denied, at all times, that he had ever been convicted of a felony,—not only to the probation officer but to his own counsel as well. The record of the hearing on the motion reveals the following: