People v. Banks

• Citation: 1 Cal.Rptr. 669,53 Cal.2d 370,348 P.2d 102
• Decision Date: 31 December 1959
• Docket Number: Cr. 6488
• Court: California Supreme Court
• Parties: , 348 P.2d 102 PEOPLE, Respondent, v. Richard BANKS, Appellant.

Page 669

1 Cal.Rptr. 669

53 Cal.2d 370, 348 P.2d 102

PEOPLE, Respondent, v. Richard BANKS, Appellant.

Cr. 6488.

Supreme Court of California, In Bank.

Dec. 31, 1959.

Edgar G. Langford and J. Perry Langford, San Diego, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant appeals from an order (entered September 29, 1958) denying his motion to set aside a judgment of conviction (pronounced September 3, 1958) of 'Possession of a Firearm Capable of Being Concealed Upon the Person by One Previously Convicted of a Felony, in violation of Section 12021, Penal Code,' and to withdraw his plea of guilty. Defendant's motion was upon the ground that he is not one previously convicted of felony within the meaning of section 12021 and that he pleaded guilty to the charge of violating that section 'solely by reason of a mistake of fact and law.' His prior conviction was in the following circumstances: Upon his plea of guilty (entered May 18, 1953) to a charge of violation of section 503 (now 10851) of the Vehicle Code, an offense punishable either as a felony or as a misdemeanor, imposition of sentence was suspended. Defendant completed his term of probation without violation. Although under the circumstances he apparently was entitled to have the prior charge dismissed on application (Pen.Code, § 1203.4; Stephens v. Toomey (1959), 51 Cal.2d 864, 871(14), 338 P.2d 182), he did not do so.

The People urge that the appeal should be dismissed because in the circumstances a motion to set aside the judgment assertedly does not lie and therefore the order denying the motion is not appealable. They also dispute the merits of defendant's contention that he is not one previously convicted of felony within the meaning of section 12021.

We have concluded that we can and should consider the merits of the appeal, but that because defendant has neither been sentenced as a misdemeanant under the former section 503 charge nor gone through the procedure under the probation law by which (presumably) he was entitled to obtain dismissal of such prior charge, his status was that of one convicted of felony within the meaning of section 12021 ¹ of the Penal Code at the time of his alleged 'Possession of a Firearm Capable of Being Concealed Upon the Person,' and that the order appealed from should be affirmed.

Defendant was charged with violation of section 12021 by a complaint filed in the municipal court. It alleges that on or about May 29, 1958, defendant possessed a described revolver and that he had been previously convicted in Alameda County of 'the crime of Unlawful Taking and Driving of a Vehicle (VC 503), a felony; that the judgment upon said conviction was pronounced * * * on the 18th day of May 1953, that said judgment has never since been reversed, annulled, or set aside.' (Italics added.)

In the present action, when before the municipal court (San Diego), defendant entered a plea of guilty and admitted the alleged prior conviction. The municipal court certified defendant to the superior court, where proceedings were had in accordance with section 859a of the Penal Code. ² Defendant reiterated his plea of guilty, again admitted the alleged prior conviction, and applied for probation. On September 3, 1958, the superior court denied probation and sentenced defendant to state prison. Throughout the foregoing described proceedings defendant was represented by counsel (not his present attorneys). The judgment became final without appeal.

On September 25, 1958, defendant, represented by his present counsel, filed notice of motion for an order setting aside the judgment and permitting defendant to withdraw his plea of guilty. At the hearing on the motion defendant for the first time presented his contention that he was not one 'who has been convicted of a felony' within the meaning of section 12021 of the Penal Code, and the facts upon which that contention is based.

Those facts, as found by the superior court, are that on May 18, 1953, the Alameda County superior court, upon defendant's plea of guilty to the charge of violation of section 503 (now 10851) of the Vehicle Code, ³ 'granted Defendant three years' probation with 12 months' incarceration in county jail as a condition thereof; that said probation period expired without revocation; and that sentence to prison was not pronounced against Defendant at any time in said proceedings and that no proceedings under Section 1203.4, Penal Code ⁴ were had therein.' The court concluded that in the foregoing circumstances defendant had been and remained convicted of the felony of violating section 503 (now 10851) of the Vehicle Code.

It is to be observed that the allegation of the complaint 'that the (Alameda) judgment upon said conviction (of felony) was pronounced * * *' is not true. No judgment in that case has ever been pronounced. After the plea of guilty an order granting probation was entered and there the case rests. It is on this state of the record that we must determine the issues before us.

Availability of Remedy of Motion to Vacate Judgment and Appeal from Order Denying the Motion. The People urge that the appeal should be dismissed for the following reasons: 'Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. * * * The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented.' (People v. Thomas (1959), 52 Cal.2d 521, 342 P.2d 889, 891, 892.)

Except where the asserted defect is jurisdictional or constitutional (see People v. Thomas, supra, at page 528, 52 Cal.2d, at page 893 of 342 P.2d), a situation not presented here, the limited purpose of the nonstatutory motion to vacate a judgment of conviction, or the California version of the writ of error coram nobis, is 'to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.' (People v. Adamson (1949), 34 Cal.2d 320, 326(1), 210 P.2d 13.) The remedy does not lie to enable to court to correct errors of law. (People v. Tuthill (1948), 32 Cal.2d 819, 822(3), 198 P.2d 505.)

It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts. (People v. Lumbley (1937), 8 Cal.2d 752, 758-760(2, 3), 68 P.2d 354; People v. Herod (1952), 112 Cal.App.2d 764, 766(4), 247 P.2d 127; People v. Ingles (1950), 97 Cal.App.2d 867, 874(2), 218 P.2d 987; People v. Harincar (1942), 49 Cal.App.2d 594, 596(2), 121 P.2d 751; People v. McVicker (1940), 37 Cal.App.2d 470, 474, 99 P.2d 1110; People v. Kretchmar (1937), 23 Cal.App.2d 19, 21(3), 72 P.2d 243; People v. Moore (1935), 9 Cal.App.2d 251, 255(4), 49 P.2d 615.) Furthermore, it has been held, 'appellant's contention that his plea of guilty should be set aside on the basis of mistake, ignorance, (and) inadvertence * * * is unavailing because the record discloses that he was represented by counsel at all stages of the proceedings.' (People v. Lempia (1956), 144 Cal.App.2d 393, 396(4), 301 P.2d 40.)

In the cases cited in the preceding paragraph, if the defendant because of his or his counsel's mistake of law pleaded guilty or admitted a charged prior conviction without presenting the facts to the trial court, the situation comes within the rule stated in the Adamson case, supra, at page 326(1) of 34 Cal.2d, at page 15 of 210 P.2d i. e., the remedy is not available because it was through defendant's 'negligence or fault' that the facts were not known to the court; if the facts were known to the court yet it accepted defendant's plea or admission, the situation comes within the rule stated in the Tuthill case, supra, at page 822(3) of 32 Cal.2d, at page 506 of 198 P.2d i. e., the remedy is not available because it is sought to enable the court to correct a mistake of law.

When the trial court in the present case (San Diego County) accepted defendant's admission that he had been convicted of a felony and his plea of guilty to the charge of a crime which has such prior conviction as an essential concurring element, the court did not know the facts as to defendant's Alameda County plea and probation. Defendant and his then counsel, however, knew or were chargeable with having known those facts, and the failure to present the contention that defendant had not been convicted of a felony and the facts upon which such contention is based was due to defendant's 'negligence or fault.'

Although defendant could and should have presented such facts and contention to the trial court before judgment, we are disposed to consider the merits of his position, because that position is based upon, among other things, a view of the pertinent probation statute (Pen.Code, § 1203.4, supra, footnote 4) which might appear not unreasonable to many persons, whether or not they were trained in the law; the precise point here presented has not been decided by a reported California opinion but counsel for each party has cited relevant cases, some of them conflicting in their approaches, which tend to support his position; and the matter is important not only to this defendant but also to many persons, now completely rehabilitaed, who have successfully completed terms of probation after the withholding of imposition of sentence. ⁵ Many of those persons it appears from data quoted to us, may have neglected to secure the...