People v. McGee

FOX, J. Appellant, with three other defendants, was charged in an information with five counts of armed robbery. In another information he was charged, together with two other men, with three counts of the same offense. It was also alleged that appellant had suffered two prior convictions for which he had served time in the state prison. After entering a plea of not guilty, appellant, who was represented by counsel, changed his plea to guilty to one count in each information. He admitted being armed with a deadly weapon at the time the robberies were committed but denied the prior convictions. Appellant then changed attorneys and made a motion to withdraw his plea of guilty. This motion was denied and the court found the allegations of his prior convictions to be true. Probation was denied and appellant was sentenced to the state prison on February 25, 1954. Thereafter, on March 17, appellant renewed his motion to set aside his plea of guilty. This motion was also denied. The cases having been consolidated for that hearing, he appeals from the order denying this latter motion.

Since the order from which this appeal is taken was made after judgment and there was no motion to vacate the judgment, the proceeding will be treated as in the nature of a writ of error coram nobis.

Appellant’s sole contention is that the " Court abused its discretion in not setting aside the plea of guilty.” There is no merit in this contention.

It is settled that the decision in a matter of this character rests in the sound discretion of the trial court and that its action will be upheld unless a clear abuse of such discretion is shown. (People v. Griffin, 100 Cal.App.2d 546, 548 [224 P.2d 47].)

At the time appellant pleaded guilty he told the [320]court he was doing so freely and voluntarily, and because he was in fact guilty of the charges. He later denied his guilt to the probation officer and stated to him that he had been “threatened with the Habitual Criminal Act” by the district attorney’s office. At the hearing on his motion he acknowledged this was not correct; that he “meant the public defendant’s office” which represented his codefendants, but on further questioning by the court he stated that “no one from the public defender’s office talked to” him; that he got the story from one of his codefendants. It is significant, however, that in his affidavit filed some weeks after his change of plea appellant made no reference to the Habitual Criminal Act nor does he mention any report from his codefendants that this act was to be invoked against him.