People v. Savin

MARKS, J.

This is an appeal by the People from an order of the trial court granting a writ of error

coram nobis,

vacating the judgment pronounced on defendant and permitting him to withdraw his plea of guilty to the charge of burglary.

The evidence submitted on the hearing of the petition consisted of three affidavits and two letters. No evidence was offered by the People and the affidavits stand uncontradicted. A portion of this evidence related to the mental inebmpetency of defendant with which we need not concern ourselves here other than to remark that it would tend to support a plea of not guilty by reason of insanity.

One affidavit was by the father of defendant. He was present at the preliminary examination and at a conversation immediately following it between the then counsel for defendant and the deputy district attorney who conducted the examination. During this conversation the deputy district attorney stated that,' on the evidence, should defendant enter a plea of guilty, the maximum sentence to be imposed would not exceed nine months’ confinement in the county road camp. Subsequently affiant talked to the assistant district attorney of San Diego County and was advised by him “that should the defendant Henry Savin plead guilty to said charge that the punishment would be confinement in the county road camp of San Diego county. . . . ” Affiant also talked to the district attorney of San Diego County and was informed by him “that, in his opinion, the punishment which would be imposed in the event a plea of guilty was entered would be confinement in the County Road Camp. ...” Affiant and the then counsel for defendant communicated the substance of these conversations to defendant prior to the time of the entry of the

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plea of guilty. None of these statements were controverted except the one which we will next mention.

Defendant presented the affidavit of the deputy district attorney who conducted the preliminary examination, in which the conversation at the close of the preliminary examination was summarized. The only conflict in this affidavit with the affidavit of the father of defendant was that he stated that it was his opinion that a sentence to the county road camp would follow a plea of guilty. This is the only conflict in the evidence disclosed in the record.