People v. Clark

FLEMING, J.

—Appellants were convicted of attempted grand theft and of forgery (three counts), and given misdemeanor sentences. They contend they have been twice put in jeopardy.

In May 1966 a complaint charged Stoker with attempted grand theft and forgery, and Clark with attempted grand theft, grand theft, and forgery. Prior to appellants’ arraignment in municipal court the district attorney told defense counsel that on a plea of guilty to one count of forgery, he would move to dismiss the remaining counts of the complaint. Thereafter each appellant pleaded guilty to one count of forgery. The court asked each appellant if he understood the charge against him; if he had discussed his plea with his attorney; if his plea of guilty was freely and voluntarily made without inducements or promises; and if he were pleading guilty because in truth and in fact he was guilty and for ho other reason. After receiving affirmative answers to these questions, the court dismissed the remaining counts and certified the case to the superior court for probation and sentence.

At appellants’ first appearance in superior court on 31 May, Judge Alarcon expressed concern about statements of appellants in the probation reports which “cast[s] some shadow as to whether they had the intent to enter a plea of guilty.” The matter was continued to 16 June. On that date the court asked each appellant if, in performing the act which formed the basis for the charge to which he had pleaded guilty, he had intended to cheat anybody. Each appellant replied he had not. Judge Alarcon then declared, “I can’t accept this, Counsel. Defendants indicate to me they are innocent. ’ ’ Judge Alarcon referred the case back to the municipal court and suggested that defense counsel withdraw the pleas of guilty, “or if you refuse to enter such a motion, then I think in the interests of justice I would have to do so. ’ ’

On 22 June, a second complaint, substantially identical with the first, was filed in municipal court, and on the follow

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ing day the first complaint was dismissed. A preliminary hearing was held 12 and 13 July, and thereafter an information was filed and appellants were arraigned in superior court before Judge Alarcon. Appellants pleaded not guilty to all counts. In September appellants stood trial before Judge Roberts on their pleas of not guilty, and at the conclusion of a three-day trial they were convicted on four counts, one of attempted grand theft and three of forgery.