In re Maynard

PEEK, J. By a petition for a writ of habeas corpus petitioner seeks his release from the state prison at Folsom alleging that he is unlawfully restrained of his liberty under a judgment of the trial court which he contends is void because of certain procedural steps taken subsequent to his commitment.

The essential facts as disclosed by the record before us are that on September 20, 1948, following his plea of guilty to [125]the crime of burglary as charged in an information filed by the district attorney of Placer County, the court determined the crime to be burglary in the first degree, denied probation and sentenced petitioner for the term prescribed by law. At that hearing petitioner was not represented by counsel and no appeal was taken therefrom. Thereafter on February 7, 1950, a hearing was had in the superior court of said county upon petitioner’s first petition for a writ of habeas corpus. Following that hearing the court issued its order wherein it was stated that the prior proceedings failed to reflect evidence sufficient to establish the degree of burglary to be that of burglary of the first degree, and ordered that the previous judgment and sentence be set aside and that petitioner be returned for the purpose of establishing by competent evidence the degree of the crime charged. On March 14, 1950, pursuant to said order a hearing was had in said superior court at which petitioner was present with counsel and orally moved to withdraw his former plea of guilty to the information and to enter a plea of not guilty thereto. This motion was denied and the court proceeded to take evidence following which the offense was determined to be burglary of the second degree. In denying said motion the court stated that the proceeding was solely for the limited purpose of fixing the degree and declined to resentence the petitioner on the ground that the original sentence was still in full force and effect. Subsequently petitioner filed his present petition for a writ of habeas corpus as previously noted.

In support of his main contention that his present detention is unlawful since he was denied the right to withdraw his plea of guilty and to enter a plea of not guilty, petitioner relies upon section 1018 of the Penal Code, which provides:

“On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn, and a plea of not guilty substituted.”