People v. Hemphill

FILES, P. J.

On April 21,1966, defendant pleaded guilty to the offenses of burglary (Pen. Code, §459) and taking a motor vehicle without the consent of the owner (Veh. Code, §10851). The two offenses were charged by separate informations. Each information alleged that defendant had previously been convicted of three felonies, to wit, robbery (Pen. Code, § 211) in 1956, escape (Pen. Code, § 4530) in 1957, and burglary (Pen. Code, § 459) in 1962. These allegations were found to be true. On May 12, 1966, defendant was sentenced to state prison for each of the two felonies to which he had pleaded guilty. There was no appeal from the judgments.

On December 16, 1966, defendant filed in the superior court a motion to vacate the judgments of May 12. In support of that motion he attached a declaration under penalty of perjury which asserted in substance as follows:

That at the time of his arrest in April 1966 “two obviously innocent” friends of his were also arrested; that “defendant was threatened and coerced into making a false confession, and pleading guilty ... in order to keep his two friends . . . from being falsely restrained of their liberty, accused and possibly prosecuted on these false charges”; that he was “threatened with being tried and convicted of numerous false charges, by the investigating detectives”; that he was “coerced , , . under duress into making the aforementioned

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‘confession’ ... in return for which the other charges against him would be dropped, and his two friends released” ; that because of fear he did this.

His declaration also asserts:

“That further, defendant was deprived of the benefits of effective counsel, in that his court appointed counsel knew that defendant was pleading guilty under duress, threat and coercion, and when defendant tried to explain in order to ask for counsel’s advice, counsel said he did not want to know about or have anything to do with the ‘deal’, or would he give advice or advise defendant of his rights, and allowed him to enter into this self-conviction thru the fraudulent plea of guilty, with apparent approval; that neither the attorney or the Court advised defendant of the consequences of his plea of guilty;