People v. Miranda

BARNARD, P. J. The appellants, with another man named Hernandez, were jointly charged with the crime of grand theft of an automobile. All three pleaded guilty on November 7, 1938, and applied for probation. The matter was referred to the probation officer with instructions to investigate and report on November 21, 1938. At that time the probation officer filed a report stating that each of the three defendants had had experiences which had brought them to the attention of the officers and to confinement in the county jail but recommending, in spite of the seriousness of this offense, that each be given probation under strict conditions, including some confinement in jail. The judge, after stating that he had read the report of the probation officer, proceeded to consider the matter in open court. In addition to the report of the probation officer, the reporter's transcript [372]contains thirteen pages of record of what was said on this occasion. The matter was rather thoroughly discussed by the court, the district attorney, counsel for the defendants and the probation officer, and the various defendants answered many questions asked of them by the court. At the conclusion of the hearing probation was denied as to each of the defendants and judgment was pronounced sentencing all three to confinement in San Quentin.

On December 10, 1938, counsel for these appellants filed a notice that on December 12, 1938, they would move for permission to withdraw their pleas of guilty and in lieu thereof enter pleas of not guilty, or that the court further consider their application for probation and grant probation to each of them. This motion was presented and argued on December 12th, supported by the affidavits of these appellants in which they set forth a story of what occurred at the time the automobile was taken which differs materially from their previous story, as given to the probation officer and to the arresting officers. In these affidavits each appellant also stated that he pleaded guilty to the charge because he was assured by his attorney that he would be given probation. After a hearing on December 12, 1938, this motion was denied and this appeal followed.

No appeal was taken from the judgment pronounced on November 21, 1938, and this appeal is from the order denying the motion for permission to change the plea, or for further consideration of the application for probation. It may well be questioned whether the trial court had authority to grant the relief asked for in the absence of a motion for a new trial and after the judgment had become final. We have, however, considered the matters presented on this appeal and find them without merit.