In Re Evans

California Court of Appeal Jul 17, 1945 No. Crim. 1916Published

Before: Peek

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Holding. The court held that the clerk's minutes and the trial judge's recitals, corroborated by testimony from counsel, prevail over a conflicting reporter's transcript regarding whether a defendant personally entered a plea of guilty.

Issues

Whether a trial court lacks jurisdiction when a plea of guilty is entered by counsel rather than the defendant personally.
Which part of a conflicting judicial record prevails when determining if a defendant personally entered a plea of guilty.

Disposition. Writ discharged and petitioner remanded.

PEEK, J.

The sole contention of petitioner is that his confinement in the State Prison at Folsom, which is predicated upon a plea of guilty to a charge of grand theft, is unlawful in that at no time did he personally enter such a plea, and that therefore the trial court was without jurisdiction to proceed to judgment and sentence against him.

In support of his contention petitioner has filed herein a transcript of the proceedings at the time of pronouncing sentence, a portion of which reads as follows:

‘‘ The above entitled matter coming on for hearing at 2:00 o’clock P. M., on Monday, May 29,1944, in Department One of the above named Court before the Honorable Charles L. Allison, Judge, the People of the State of California being represented by Jerome B. Kavanaugh, Esq., District Attorney of San Bernardino County, and the defendant being present in per

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son and being represented by Raymond E. Hodge, Esq., his Attorney, the following proceedings were had: . . .

The Court •. Are yon ready for arraignment ?

Mr. Hodge: Yes.

The Court: The defendant will stand up. Evans you are informed that on this, the 29th day of May, 1944, the District Attorney of this County filed an- information in this Court charging you with the crime of grand theft, a felony, in which information you are charged under the name of James T. Evans. Is that your true name?

. The Dependant: Yes, sir.

The Court : Do you waive the reading of the information ?

Mr. Hodge.- We waive the reading of the information.

The Court: With respect to plea, what do you wish to do? . . .

The Court: You plead guilty?

Mr. Hodge: We plead guilty to grand theft, as alleged.”

Petitioner then concludes that as a plea of guilty “can be put in by the defendant himself only in open court” (Pen. Code, § 1018), and as the reporter’s transcript of the proceedings as prima facie evidence of such proceedings (Code Civ. Proc., § 273) stands as proof of the particular facts therein set forth until it is both contradicted and overcome by other evidence

In Re Evans

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PEEK, J.

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