People v. Dutton

CRAIL, P. J.

This is an appeal from an order after judgment denying defendant’s motion to set aside his plea of “guilty” to one count of an information charging him with issuing a check without sufficient funds. The information also charged the defendant with a prior conviction of a felony in the state of Wisconsin to which the defendant admitted having served a term of imprisonment in a state prison, but denied that it was a felony. He was thereupon sentenced to the California state prison at Folsom for the term prescribed by law, and the court ordered the judgment to show that the defendant had been pardoned by the governor of the state of Wisconsin as to the offense set forth in the prior conviction. An appeal was taken from this conviction and the conviction was affirmed.

(People

v.

Dutton,

9 Cal. (2d) 505 [71 Pac. (2d) 218].) Upon the return of the

remittitur

the defendant filed with the court a motion to set aside his plea of “guilty” to count one of the information on the ground that he was and is not guilty of said offense as shown by the evidence taken at the preliminary examination which is set forth in said motion, and requested that a new and different plea be entered, to wit, a plea of “not guilty”. The motion was denied, and from said order this appeal is taken.

The appellant contends (1) that the evidence given at the preliminary hearing shows that he is not guilty of the offense charged, and therefore the judgment is void for lack of jurisdiction, and (2) that defendant’s plea of “guilty” was obtained through excusable mistake in that he honestly believed he was entitled to receive probation for the reason that he had been pardoned on a prior conviction set forth in the information.

Evidence taken at a preliminary examination may not be used for the purpose of attacking the validity of a judgment founded upon an information for the reason that the judgment is predicated upon a plea or verdict of “guilty”, or a verdict against the defendant on a plea of former conviction or acquittal or once in jeopardy. (Sec. 1191, Pen. Code.) If the evidence given at the preliminary examination is insufficient to hold a defendant to answer for the crime charged in the information, his remedy is by

habeas corpus,

[366]