People v. Fuller

DESMOND, J., pro tem.

Defendant appeals from an order of the trial court denying his motion (1) to set aside the judgment and sentence imposed upon him, (2) to withdraw his plea of guilty, (3) to be permitted to enter a plea of not guilty.

This appellant, charged with the crime of robbery while armed with a deadly weapon, had originally entered a plea of not guilty. While held in jail awaiting trial, at the request of a chief of detectives and a deputy district attorney, and with the approval of his own attorney, he made a complete disclosure in regard to the offense charged, and gave the law enforcement authorities such information as they desired and as was within his knowledge concerning other criminal activities in the community where the offense complained of was committed. Defendant was induced to make these disclosures by representations made to bim by the officers mentioned that in consideration therefor every effort would be made to secure probation for him, and that at any rate upon a plea of guilty he could rest assured that he would receive no more severe punishment than is provided for second degree robbery, the district attorney having recommended and the court having accepted a plea of guilty to the offense of robbery in that degree in the case of an alleged accomplice of the defendant, who, it appears, was armed at the time of the offense, the defendant then being unarmed.

[774]

Acting upon these representations and inducements, the defendant changed his plea from not guilty to guilty and applied for probation. The court, on a statement of the facts relating to the offense being made by a deputy district attorney, fixed the crime as first degree robbery, and at a later time denied probation and sentenced defendant to San Quentin for the term provided by law. Prior to sentence being imposed, appellant’s counsel asked the court to permit the defendant to withdraw his plea of guilty, stating that the request was based upon the inability of the prosecuting officers to secure for the defendant what they had given him every reasonable hope to expect, namely, lenient treatment at the hands of the court.

The judge, notwithstanding this presentation of the case, denied the request and imposed the sentence for first degree robbery. A week later he denied the formal motion on matters now before us. This motion was supported by affidavits as to which there is no counter showing, and which, uncontradicted as they are, indicate that the appellant in this case was the victim of the same kind of legal fraud as the appellant in the case of