People v. Toledo

BARNARD, P. J.

The defendant was charged in an amended information filed by the district attorney of Tulare County, with the crime of forgery and with two prior convictions of burglary. He entered a plea of guilty, admitted the priors, waived the time for pronouncing -judgment and was sentenced on September 22, 1930, to imprisonment in the state penitentiary at Folsom. On October 1, 1930, he moved to set aside the judgment, and for permission to withdraw his plea of guilty and enter one of not guilty. After a hearing, the court denied the motion and this appeal is taken from this order, and also from the judgment originally rendered.

Appellant first contends that the evidence presented at the hearing does not support the order denying his motion for permission to change his plea. It is his position that, in any view of the case, certain statements made to him by the deputy district attorney prior to his plea of guilty, constitute such a threat as to conclusively show that the plea of guilty was made, not freely and voluntarily, but

[206]

under duress and as a result of fear. In his own affidavit, which appellant introduced in support of this motion, the principal statement complained of is thus set forth: “It is lucky for you that you got here now, for I was just about to file three other charges against you and one charge against your brother, Domingos Toledo, charging him with compounding a felony for offering to pay off those checks.” The affidavit further sets forth that the deputy district attorney also stated that in case the other charges were filed- against appellant, the term of his sentence would be forty-eight years, and that if he entered a plea of guilty upon a single charge alone, sentence would only be twelve years; that affiant was informed by his own attorney that if he entered a plea of guilty his sentence would be twelve years, which could be reduced by credits for good behavior; that he entered his plea of guilty for the purpose of protecting his brother; for the additional reason that he believed his sentence would be but twelve years; and that he did not learn until after his plea was entered that the sentence would be for life. Appellant also introduced the affidavit of the attorney who represented him at the time he pleaded guilty, being a different attorney from those conducting his appeal, in which the attorney states that immediately after he arrived in the courtroom, prior to the plea of guilty, the deputy district attorney announced that it was a good thing he had gotten there as he was about to get a warrant for appellant’s brother and three more warrants for the appellant himself; that during a conversation which followed, the deputy district attorney stated, in a rather impatient and threatening manner, that he had a witness to the effect that appellant’s brother offered to and tried to buy one of the checks involved in one of the three additional charges; that he intended prosecuting all parties .that had anything to do with these checks; that the sentence would be for twelve years; and that affiant believed twelve vears to be the maximum sentence.