People v. Lamb

WHITE, J.

In an information filed by the District Attorney of Los Angeles County, the defendant was accused of the crime of rape, allegedly committed upon a female of the age of 15 years (Pen. Code, § 261, subd. 1).

On August 3, 1943, the defendant appeared for arraignment without counsel. The public defender was thereupon appointed to represent him, and the arraignment was continued to August 6th. On the last named date, defendant appeared accompanied by his counsel and entered a plea of not guilty. The cause was set for trial for October 8th. Prior to the date of trial, and on September 24th, private

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counsel was substituted in the place and stead of the public defender as defendant’s attorney.

On the date set for trial, the defendant appeared in court with his counsel and, upon his request, with leave of court, withdrew his plea of “not guilty,” and upon his rearraignment interposed a plea of “guilty.”

Leave to file an application for probation being granted, hearing thereon was set for October 27th. During the proceedings had at the time defendant changed his plea from “not guilty” to “guilty”, the prosecutrix was sworn and testified. Hearing upon the application for probation was continued to November 3d, and upon that date the report of the probation officer was filed. Police Officers Mary Ross and Daniel L. Shay were sworn and testified relative to certain matters contained in the report of the probation officer. Thereupon the application for probation was denied and the defendant was sentenced to imprisonment in the state prison for the term prescribed by law.

Immediately following the pronouncement of judgment, defendant’s counsel addressed the court as follows;

“In this matter, if your Honor please, the defendant at this time moves to set aside the judgment heretofore imposed by this Court, and also makes a motion to withdraw his former plea of guilty for the purpose of entering a plea of not guilty. And may I say that the reason I am making application to set aside the guilty plea is that it is my opinion that in order for the Court to pass on the motion to set aside the judgment it is necessary also for me to make that motion.” Both the motion to set aside the judgment and for permission to withdraw the plea of guilty were denied by the court. Defendant’s appeal presents the question of the legality of the two orders just mentioned.