People v. Etter

GRIFFIN, J. On November 25, 1946, defendant was charged with four felony counts, two of burglary and two of robbery. The information further charged him with a prior felony conviction. The record shows that on December 3, 1946, defendant was duly arraigned in the superior court, with his counsel present, presented with a true copy of the information, and that he entered a plea of guilty to the four counts of the information. Probation was denied. Judgment and sentence were pronounced, committing him to the state’s prison, sentences to run consecutively on all counts, and concurrently on the prior felony conviction. No motion for a new trial was made nor was any appeal taken. On October 29, 1951, more than four years later, defendant filed a “Notice of Motion to . . . vacate . . . the judgment,” and set November 19, 1951, as the date for hearing thereon and asked that an order be made allowing him to be personally present at the hearing. No request was made to the court to appoint counsel to represent him. Defendant, in propria persona, filed his points and authorities, accompanied by a transcript of the charges and the reporter’s transcript of the preliminary examination, together with his own affidavit setting forth the alleged facts, in which he recites that the trial court was without jurisdiction in the original proceeding in the superior court to render judgment against him because he entered no plea to the four felonies charged, either at the preliminary hearing or at the time of arraignment in the superior court, and that accordingly the judgment under which he was sentenced was null and void and should be set aside, citing Price v. Johnston, 334 U.S. 266, 280 [68 S.Ct. 1049, 92 L.Ed. 1356]; sections 859a and 988, Penal Code; article I, sections 8 and 13, Constitution of California; and Fourtenth Amendment to the Constitution of the United States.

Defendant concedes in his motion that a preliminary hearing was had and that he was held to answer to the [451]superior court on the charges. (He claims, however, he entered no plea before the committing magistrate.) He further argues that at the time of his sentence, he was not informed by his counsel that he had a right of appeal, and that he was ignorant of such right.

The court denied defendant’s request to be present at the hearing of the motion on the grounds “that the presence and testimony of the defendant will not be material or necessary to the proper presentation of defendant’s motion.” On November 19, the court heard the motion, predicated on the record prepared by defendant, and the clerk’s transcript, all of which, including the reporter’s transcript of such proceedings, are now before this court on an appeal from the order denying the motion to set aside the judgment. The clerk’s transcript shows, by minute entry of the clerk, that on December 3, 1946, defendant appeared with his counsel; that he was duly arraigned, and “enters a plea of guilty to the four counts of the information” and applies for probation. The commitment recites that “defendant was duly informed by the court of the nature of the charges against him for the crime of burglary, first degree; burglary, second degree; robbery, first degree; robbery, first degree; and a prior felony”; and that he be punished by imprisonment in the state prison, sentences to run consecutively on all counts and concurrently on the prior felony.