Johnson v. Superior Court

Opinion

SCOTT, J.

This petition raises the question of whether a defendant must

personally withdraw

his guilty plea in open court before it is effective. We conclude that the language of Penal Code section 1018 requires the affirmative manifestation of concurrence by a defendant before his previously entered guilty plea may be withdrawn.

[117]

Petitioner was convicted December 6, 1979, on his guilty plea of a violation of Penal Code section 211 (robbery) fixed at first degree. He admitted the use of a firearm and that he inflicted great bodily injury in its perpetration. Petitioner’s crimes were committed before the effective date of the Determinate Sentencing Act (DSA). A plea bargain was entered into whereby the parties contemplated that the Community Release Board (CRB) (established under the DSA) would set petitioner’s term at seven years. It was further agreed that if. the CRB set his term in excess of seven years petitioner could withdraw his guilty plea and the original information would be reinstated.

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Petitioner was sentenced under the Indeterminate Sentence Law to the term prescribed by law. The CRB set petitioner’s term at

eight years.

Informal attempts by the court to convince the CRB to reduce the term to seven years were unsuccessful.

Trial counsel then filed a motion to withdraw the guilty plea. With petitioner present in court, counsel answered the court’s questions about the motion to withdraw. Petitioner said nothing during the hearing, and the motion was granted.

Thereafter, petitioner was unable to enter into what he considered to be a satisfactory plea bargain. When petitioner did not accept the proffered plea bargain, the proceedings on the original charges were revived.

New counsel was substituted to defend petitioner. He filed a motion in the trial court to vacate the withdrawal of the guilty plea, claiming the requirements of Penal Code section 1018 had not been met. After an evidentiary hearing, the court denied the motion. This petition followed.