People v. Espinoza

FLEMING, J.

George Espinoza pleaded guilty to one count of armed robbery (Pen. Code, § 211). Two prior felony convictions were charged and denied. After the prosecution introduced the judgment and sentence records of the prior convictions, the defendant testified he had not had the assistance of counsel at the time of his prior convictions. The trial court found that the charge of two prior convictions was true.

1. Defendant initially contends that his plea of guilty was involuntary. (Pen. Code, § 1018.) He argues that his plea was unlawfully impelled by the knowledge that the police had obtained a confession from him, a confession secured in violation of the constitutional rights set forth in

People

v.

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]. This argument is without legal effect. First, defendant never moved to withdraw his guilty plea as required by Penal Code, section 1018. Second, the transcript reflects that Espinoza pleaded guilty of his own volition with full knowledge of his rights and with the concurrence of his counsel. His guilt was established by the plea itself and not through the use of illegally-obtained evidence.

(People

v.

Wendes,

237 Cal.App.2d 814, 816-817 [47 Cal.Rptr. 310].) Even if the

Dorado

rule had been violated, we cannot assume that the prosecution would have attempted to rely on illegally-obtained evidence at the time of trial, especially in view of the showing at the preliminar}'- hearing that Espinoza had been caught by the police during the robbery itself, Defendant has not

[720]

sustained the burden of showing that his plea was an involuntary act.

■ 2. Espinoza attacks the finding of two prior felony convictions. Pie argues that because he had not been represented by counsel at the time of these earlier convictions they cannot properly be used to increase the severity of his present sentence. In this contention defendant is on firm legal ground. Our Supreme Court has recently held that the use of prior convictions to establish habitual criminality under Penal Code, section 644, may be attacked for lack of representation by counsel in the prior proceedings.