People v. Curtis

BARTLETT, J. pro tem.

This is an appeal by the defendant from an order denying her motion to set aside her plea of guilty made in the action and the judgment rendered and entered as a result thereof:

By an information filed by the District Attorney of Los Angeles County on June 7, 1950, the defendant was charged with three counts of forgery and also with a prior conviction of a felony. On July 16, 1950, she appeared in court with her attorney, P. E. Durkee, and entered a plea of not guilty to each of the counts of the information and denied the prior conviction alleged in the information. Three days later she appeared in court with the same counsel, Deputy District Attorney Galliano being present, and by leave of court withdrew her plea of not guilty to count I of the information,

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entered a plea of guilty thereto and again denied the prior conviction. The defendant then waived time for sentence and her request for leave to file an application for probation was granted. The hearing of this application, the pronouncement of judgment and sentence as to count I and the disposition as to counts II and III were set for August 11, 1950. On that date she appeared with her attorney, Deputy District Attorney Grail being present, and the matters were continued to August 25, 1950. She appeared on that date again with Mr. Durlcee representing her and Deputy District Attorney Grail again represented the People. The court found that the prior conviction, as alleged in the information, was true, denied the application for probation and pronounced judgment and sentence as to count I of the information. Following that the court dismissed counts II and III of the information. Thereafter the defendant appeared without counsel on a motion to modify sentence. The hearing on this motion was continued to September 11, 1950, when she again appeared without counsel, Deputy District Attorney Galliano representing the People. The motion to modify the sentence was denied. Immediately thereafter David Silverton was substituted as her counsel in place of Mr. Durkee. Mr. Silverton then orally made the following motion: ‘1 Comes now the defendant, Ellen Curtis, and herewith requests the Court to set aside the sentence heretofore imposed and withdraw her plea of guilty heretofore entered for the purpose of entering a new and different plea, and in support of that motion the defendant asks leave of Court to take the witness stand in order to tell of the proceedings which occurred prior to her pleading guilty for the purpose of enabling the Court to pass upon the motion. The defendant has advised me that she is not in truth and in fact guilty, and that she only pleaded guilty because she was required to do so. ” The defendant then took the witness stand and testified in her own behalf. No other testimony was taken. At the close of the hearing the motion was denied.