People v. Perry

California Court of Appeal Oct 4, 1963 No. Crim. 8710Published

Before: Jefferson

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Holding. The court held that the trial judge did not abuse his discretion in denying the defendant's motion to withdraw his guilty plea, as the defendant failed to provide clear and convincing evidence of good cause and the trial court was not required to accept the defendant's uncontradicted affidavit as true. Furthermore, any procedural error regarding the timing of the delivery of the probation report was cured by the court's subsequent continuance of the sentencing hearing.

Issues

Whether the trial court abused its discretion in denying the defendant's motion to withdraw his plea of guilty.
Whether the defendant established good cause for withdrawing his guilty plea by clear and convincing evidence.
Whether the failure to provide the probation report two days prior to the hearing was cured by a subsequent continuance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled in our law that an accused who seeks to set aside a plea of guilty must show good cause therefor, and the granting or denial of such an application rests in the sound discretion of the trial judge”

“The rule is well established that a defendant cannot be permitted to gamble on the anticipated result of a plea of guilty and when disappointed in the outcome reestablish his right to a trial.”

JEFFERSON, J.

On July 5, 1961, defendant was charged by information with grand theft for allegedly obtaining a loan of $800 from one Edna E. Joslyn by means of false representations. Defendant entered a plea of not guilty.

Prohibition proceedings were subsequently instituted in the appellate courts by defendant and a continuance was granted pending the outcome. Thereafter the writ sought was denied by the state Supreme Court

(Perry

Superior Court,

57 Cal.2d 276 [19 Cal.Rptr. 1, 368 P.2d 529]), and the matter was set for trial. On April 30, 1962, defendant withdrew his plea of not guilty and entered a plea of guilty. He has represented himself in propria persona throughout the proceedings,

including those seeking a writ. On June 22, 1962, a motion for new trial was denied, proceedings were suspended, and defendant was granted probation under certain conditions. Following defendant’s motion for a stay of execution, and in order to permit defendant to remain on bail while he arranged his affairs before going to jail for 270 days, one of the conditions of probation, the court vacated the proceedings taken on June 22 and the matter of probation and sentence was continued to July 6, 1962. On the latter date, defendant filed a “motion to set aside judgment and to allow defendant to change his plea of guilty to plea of not guilty.” On July 13, 1962, the motion was heard and denied, proceedings were suspended, and probation was granted for five years upon the same conditions set forth in the original probation order of June 22, 1962.

Defendant’s notice of appeal from the denial of his

[844]

“motion to set aside judgment” will be treated as an appeal from the order granting probation.

Defendant maintains that the trial court should have granted his motion to withdraw his plea of guilty. The proceedings had relating to defendant’s withdrawal of his original plea of not guilty and entry of the plea of guilty conclusively show that both the deputy district attorney and the court carefully questioned defendant in order to ascertain that he was acting voluntarily and not because of any threats or promises of any kind and specifically with respect to representations as to punishment or penalty.

People v. Perry

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JEFFERSON, J.

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