People v. Negley

SHINN, P. J. Following a preliminary hearing the district attorney of Los Angeles County filed an information charging the appellant in Count I with violation of Penal Code, section 288a, and in Count II with violation of Penal Code, section 286. The appellant pleaded “Guilty as charged in [695]Count I of the. information” and “Not Guilty” as to Count II. His attorney filed an affidavit in which he asserted that the appellant was a sexual psychopath and the court appointed three doctors to examine him under Welfare and Institutions Code, section 5500. The appellant’s application for leave to file an application for probation was granted. The court found the appellant to be a sexual psychopath, and committed him to Norwalk State Hospital for a period not to exceed 90 days, and directed the superintendent of the hospital to report his diagnosis and recommendation concerning the appellant to the court within the 90-day period. The appellant was subsequently returned to court from the hospital, his application for probation was denied, and he was sentenced to the state prison for the term prescribed by law. Count II of the information was then dismissed. Subsequently he moved to set aside the judgment, sentence and plea of guilty, and his motion was denied. This appeal is from that order.

At the preliminary examination a 15-year-old boy testified that he slept for six nights in appellant’s home; that during that time appellant committed an act constituting a violation of section 286 of the Penal Code and an act constituting a violation of section 288a of the Penal Code. After the testimony of the boy the following occurred: “ ‘Mb. Ceail (Deputy District Attorney) : You may step down. Do I understand you want to put the defendant on the stand? Me. Obme (Attorney for the appellant) : That is right. Mb. Cbail : All right; come around. Mb. Obme: Vic, take the stand.’ ” At the suggestion of appellant’s attorney the district attorney questioned the appellant. The questioning developed that appellant fully understood that he was not required to take the stand, that he was doing so voluntarily and understood that anything he said might be used against him. He admitted committing the acts to which the complaining witness had testified.

After judgment was entered appellant obtained new counsel and made his motion to set aside the plea, judgment and sentence. The grounds of the motion were, generally, that he was not sufficiently advised by his counsel or the court and would not have pleaded guilty if he had known that he might be sent to state prison. He alleged that the officers who arrested him procured a confession by representing that leniency would be shown him if he admitted the acts of which he was accused. He alleged that his attorney, Archie D. Orme, represented to him that he would not go to