In Re Brain

California Court of Appeal Dec 22, 1924 No. Docket No. 1225.Published

Before: Langdon

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Holding. A judgment of conviction based on a guilty plea entered by an attorney rather than the defendant personally is invalid, as the law requires the defendant to enter such a plea personally in open court.

Issues

Whether a guilty plea entered by an attorney on behalf of a defendant satisfies the statutory requirement for a valid plea.
Whether the absence of a valid plea renders a judgment of conviction void when no evidence of guilt exists in the record.

Disposition. Remanded

Quotations verified verbatim against the opinion

“We think this was not a proper plea in the face of the statute, which specifically provides that a plea of guilty can be put in by the defendant himself only in open court.”

“There being no plea, no valid judgment against the defendant could be entered.”

LANGDON, P. J.

This matter comes before us upon an application for a writ of

habeas corpus.

Petitioner contends that his confinement in the state prison at San Quentin, California, is illegal because the judgment of conviction of the crime of burglary, by reason of which he is being

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restrained of Ms liberty, was based upon a plea of guilty and that no such plea was ever entered by said petitioner.

From the transcript of the proceedings in the trial court, it clearly appears that the petitioner did not plead guilty, but that his attorney stated to the court: “I believe the information has been read; if not, we will waive the reading of the information and enter a plea of gmlty and make application for probation.”

We think this was not a proper plea in the face of the statute, which specifically provides that a plea of guilty can be put in by the defendant himself only in open court. Sec. 1018, Pen. Code.) In the ease of

People

McCrory,

41 Cal. 461, it was said: “A plea confessing himself to be guilty of crime should not be entered except with the express consent of the defendant, given by him personally, in direct terms, in open court. NotMng should be left to implication, and his confession of gmlt should be explicitly made by himself in perspn in the presence of the court.”

Respondent taltes the position that the foregoing decision is inapplicable here because of the subsequent enactment of section

4y2

of article VI of our constitution, which section respondent contends covers the omission in the instant ease. We do not agree with this position. The record before us contains no evidence whatsoever upon the question of the guilt of petitioner, and it is impossible, therefore, to say that substantial justice has been meted out to the defendant. Section 4% of article VI of the constitution could not be applied in the instant case even though we considered the error a procedural one, because of the absence of any record upon which we might judge of the guilt or innocence of the petitioner. In this respect, the instant case differs from the cases of

In Re Brain

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LANGDON, P. J.

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