People v. Roberson

LILLIE, J. Defendant was charged in Counts 1 and 2 of an information with having committed lewd and lascivious acts on the bodies of two females under the age of 14 years, in violation of section 288, Penal Code. He pleaded not guilty to both counts, but on the day set for trial defendant, represented by, and in the presence of his counsel, withdrew his plea of not guilty to Count 1 and substituted therefor a plea of guilty. The court, under section 5504, Welfare and Institutions Code, appointed two doctors to examine him and ordered the probation officer to submit a probation report. Proceedings on Count 2 were continued for further disposition, and later dismissed.

Upon the report of the two court-appointed doctors that defendant was “a possible sexual psycopath,” the court below, on March 10, 1958, committed him to Atascadero State Hospital for a period not to exceed 90 days for observation. Thereafter, returning defendant for sentence, the Director of the State Hospital, Dr. Rude, reported to the court that defendant was a sexual psychopath, would not benefit from further care and was a menace to the health and safety of others; and recommended he be sentenced on the charge. On July 11, 1958, defendant, with his counsel, appeared before the lower court, at which time it found defendant to be a [544]sexual psychopath, denied probation and sentenced him to the state prison. Defendant’s appeal is taken from “my case,” but we will treat the same as one taken from the judgment entered upon his plea of guilty and the subsequent denial of probation.

Although defendant was represented by counsel at all stages of the proceedings in the court below, he appears before us now in propria persona. His opening brief, not in compliance with the Rules on Appeal and consisting of only several short paragraphs, declares that he had been drinking to relieve a back pain and that because of a “promise” of probation, he pleaded guilty to a crime he 1 ‘ did not commit. ’ ’

Defendant’s bare statement that he was “promised probation” stands alone without any explanation concerning the manner in which the alleged promise was made, by whom and when it was made, and of what it consisted. In the absence of more specific and relative information, the mere declaration that defendant pleaded guilty under a “promise” of probation is ineffective to create a meritorious issue before this court, particularly when it is clear from the record he was at all times represented by counsel, and never called the matter to the attention of the trial judge on a motion to set aside the guilty plea, or otherwise, either before, at the time of, or after judgment.