People v. Barteau

Opinion

BROWN (Gerald), P. J.

Defendants William Barteau and Janis Worthy Barteau appeal their probation orders deemed final judgments after they pleaded guilty to possessing marijuana (Health & Saf. Code, § 11530). They contend the court abused its discretion in denying their motions to withdraw their guilty pleas.

Defendants were initially charged by information with possessing marijuana for sale (Health & Saf. Code, § 11530.5), possessing peyote (Health & Saf. Code, § 11500) and possessing opium (Health & Saf. Code, § 11500). William Barteau was charged with a prior conviction of possessing marijuana. Defendants moved to set aside the information and to suppress evidence. The court denied the motions to set aside the information when defendants failed to appear either in person or by counsel on April 6, 1968, the hearing date. The record does not disclose the disposition of the motions to suppress evidence which had also been noticed for April 5, 1968.

On April 17, 1968, both defendants withdrew their not guilty pleas and entered pleas of guilty to the included offense of possessing marijuana (Health & Saf. Code, § 11530). The charges of possessing peyote and opium were dismissed. The court struck William Barteau’s prior conviction.

Defendants contend their changes of plea resulted from a bargain struck with the district attorney’s office. Their attorney executed and filed a declaration in support of a motion defendants be allowed to change their pleas back to not guilty. According to this declaration the substance of the plea bargain was William Barteau, who belonged to the Marine Corps Reserve, would ask to be put on active duty. The district attorney would recommend he be granted probation on condition he enter active duty with the Marine Corps. William Barteau did apply for active duty. The district attorney did recommend probation.

The court minutes show the court set May 8, 1968, for defendants’ probation hearings following their changes of pleas. On May 8, 1968, the probation hearings were continued to June 12, 1968, with a notation the

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hearing was to be moved up if military orders were received. On June 10, 1968, defendants’ attorney declared he first learned William Barteau might not be activated. On June 12, 1968, at the continued probation hearing the deputy district attorney told defense counsel William Barteau would not be activated. The court again continued the probation hearing, to June 14, 1968, to allow defendants to file their motions to withdraw their guilty pleas.