People v. Martin

[63]

DRAPER, P. J.

Defendant pleaded guilty to a charge of robbery (Pen. Code, §211), was sentenced to prison, and appealed in propria persona. Notice of appeal was filed late, but investigation revealed it had been presented to prison authorities in time. Relief was granted (Cal. Rules of Court, rule 31 (a)), and counsel on appeal was appointed. The Attorney General moved to dismiss the appeal as frivolous, a motion which we entertain when guilt has been established by plea

(People

v.

Wallace,

217 Cal.App.2d 440 [31 Cal. Rptr. 697]). Upon such a motion, appointed counsel is requested to consult defendant to ascertain whether he questions the accuracy of the transcript, whether he asserts that he was not represented by counsel or did not personally enter the plea, and the nature of any errors claimed by him.

Neither appointed counsel nor defendant denies that the latter personally entered the plea of guilty, but we felt that study of the record and the authorities was required, and therefore ordered the motion submitted for decision.

A guilty plea “must be put in by the defendant himself in open court” (Pen. Code, § 1018). Earlier cases literally applied this rule to require specific plea by a defendant, without inquiring as to whether he had adopted the plea by words spoken in open court

(In re Breen

(1958) 162 Cal.App.2d 235 [328 P.2d 465] ;

In re Brain

(1924) 70 Cal. App. 334 [233 P. 390]). In 1959, however, the Supreme Court pointed out that the purpose of the statute is to assure that the plea is the defendant’s own, and that this end is served if the defendant “authorized or adopted counsel’s statement of his plea”

(In re Martinez,

52 Cal.2d 808, 815 [345 P.2d 449]).

In our case, the reporter’s transcript shows that counsel, rather than defendant, entered the plea of guilty to the first count. Defendant then personally answered the court’s question as to whether he was armed. A week later, defendant and his attorney appeared in open court. The following occurred: