People v. D'Agostino

HERNDON, J. J.Defendant appeals from the judgment entered against him following his plea of guilty to the crime of conspiracy to violate section 337a of the Penal Code (bookmaking). Appellant’s basic assignment of error is that the trial court abused its discretion in refusing to allow him to withdraw his plea of guilty after he had learned on the date originally scheduled for his probation and sentence hearing that he would be imprisoned for his offense.

Appellant and some six other codefendants were charged jointly in a six-count information with five violations of section 337a of the Penal Code, subdivisions 1, 2, 3, 4 and 6, and [329]one count of conspiracy to violate said section. It appears that all defendants were represented by Mr. Joe Forno, an experienced trial counsel. Initially, all defendants made motions under section 995 of the Penal Code.

However, on the date set for the hearing of these motions before Judge H. Burton Noble, four of the defendants withdrew their motions and changed their pleas to guilty. Appellant and one other defendant were transferred to the court of Judge William E. Fox. Subsequently, the prosecution “conceded” that the 995 motion by the remaining codefendant was well taken and a dismissal of the charges against him was granted. Appellant withdrew his motion and changed bis plea to guilty to Count I of the information, i.e., conspiracy to commit bookmaking. The matter was thereupon continued for probation and sentence hearing.

At the time appellant changed his plea to guilty, he testified as follows in response to the questioning of the deputy district attorney:

“I understand from your attorney that it is your desire at this time to enter a plea of guilty to Count I of this information, the conspiracy to commit bookmaking. Is that your desire, sir? The Dependant D’Agostino: Yes, sir. Mb. Cherniss: You have talked this matter over with your attorney ? The Dependant D’Agostino: Yes, sir. Mr. Cherniss: And you understand that you do have a right to a trial by jury on the issues of fact contained in this case ? The Dependant D ’Agostino: Yes, sir. Mr. Cherniss : And has anyone made you any promises of immunity or lesser sentence or probation because you are entering a plea of guilty to this charge ? The Depend-ant D’Agostino: No. Mb. Cherniss: Has anyone made any threats forcing you to enter a plea of guilty to this charge? The Dependant D’Agostino: No, sir. Mr. Cherniss: Are you entering the plea of guilty to this charge because you believe in truth and fact you are guilty of the charge of conspiracy to violate Section 337a of the Penal Code ? The Defendant D’Agostino: Yes, sir. Mr. Cherniss: And you are entering this plea freely and voluntarily ? The Dependant D’Agostino: Yes, sir. Mr. Cherniss: To the charge of conspiracy to violate Section 337a of the Penal Code, a felony, as charged in Count I of the information number 285,970, how do you now plead ? The Defendant D ’Agostino : Guilty. Mr. Forno : We will waive time for sentence, your Honor, request permission to file a written application. ’ ’