People v. Brotherton

• Decision Date: 06 January 1966
• Docket Number: Cr. 5036
• Citation: 48 Cal.Rptr. 513,239 Cal.App.2d 195
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael J. BROTHERTON, Defendant and Appellant.

Page 513

48 Cal.Rptr. 513

239 Cal.App.2d 195

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael J. BROTHERTON, Defendant and Appellant.

Cr. 5036.

District Court of Appeal, First District, Division 1, California.

Jan. 6, 1966.

Hearing Denied March 2, 1966.

Bertram M. Berns, San Jose, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant filed his notice of appeal following a judgment sentencing him to state prison upon his conviction by pleas of guilty of two counts of possession of marijuana in violation of section 11530 of the Health and Safety Code. The notice recites: 'Petitioner gives notice of Appeal to the motion for a chance [sic] of plea from that of guilty to that of not guilty, and Notice of Appeal the sentencing of Petitioner, and Notice of Appeal for a Motion of a Writ, to be presented to the Court before Court sentenced Petitioner.' No appeal lies from an order denying the defendant's motion to change his plea or from other orders before judgment or its equivalent, but the rulings may be reviewed on appeal from the judgment, or from the 'sentence' as deemed a final judgment. (Pen.Code § 1237, subd. (1); Cal.Rules of Court, rule 31(b); and see People v. McDonough (1961) 198 Cal.App.2d 84, 86-87, 17 Cal.Rptr. 643.) ¹

Defendant contends it was an abuse of discretion to deny his motion to withdraw his plea of guilty and substitute a plea of not guilty. He asserts error in that the trial court allegedly took judicial notice of the effects of a drug. For the reasons hereinafter set forth it is concluded that the record as a whole supports the discretion exercised by the lower court in the denial of the motion; and that the observations of the court, even if erroneous, do not affect the result.

On August 20, 1964 a complaint was filed in the appropriate municipal court charging the defendant in one count with a sale of marijuana in violation of section 11531 of the Health and Safety Code on July 24, 1964, and in a second count with a similar violation on August 2, 1964.

The defendant was taken into custody, according to his statement, at 7 a. m. on January 12, 1965. On January 14th, at or after 2 p. m., he appeared before the magistrate with counsel, and with the consent of the magistrate and the prosecutor, his pleas of guilty to two counts of possession of marijuana in violation of section 11530 of the Health and Safety Code, offenses necessarily included in those with which he was charged, were received and entered, and the proceedings thereupon were certified to the superior court, all as provided in section 859a of the Penal Code.

The complaint and certificate of the magistrate were filed with the superior court on January 18th, and on the 27th the matter came before the court for sentence. The defendant appeared with his counsel, an assistant public defender, and at the request of the defendant the matter was referred to the probation officer for investigation and report and continued to February 17th. The record fails to reflect that either the defendant or his counsel voiced any objection to the prior proceedings generally, or specifically, to the plea he had theretofore entered.

On February 16th, a judge presiding in another department placed a 'Petition for Injunction' on the calendar and assigned it for hearing to the department in which the defendant had appeared for sentence. This 'petition' is apparently a document entitled 'Motion for Injunction Against Alameda County Sheriff's Department,' dated February 10, 1965 and signed by the defendant. It, and a 'Motion for Legal Materials, Law Books and Constitutions,' similarly dated and signed, were formally filed with the court on February 19th. Neither of these instruments refers to the defendant's subsequently launched attack on his plea.

From the record of the proceedings of February 19th, it appears that defendant was before the court on the 17th; and that on that day, through his attorney, he for the first time advised the court that he wished to make a motion to withdraw his plea of guilty. The matter was apparently continued to the 19th, at which time, after reviewing the foregoing, the following occurred: 'The Court: * * * What are your grounds for that? The Defendant Well, sir, I was under the influence of a drug methedrine, and I have with me the doctor's--This is what methedrine does to a person. It affects their mind. This is taken out of a pharmacology book by a doctor--his name is on here. The Court: I think that I can take judicial notice of methedrine's effect on a person's system. How long were you in custody when the plea was entered?' In the following discussion the defendant stated he had been in custody approximately 18 hours when the plea was entered, but further inquiry revealed that the time from when he admittedly was taken into custody to the time he entered his plea was at least 55 hours. The court concluded 'I would say that would be sufficient time to let that methedrine wear off.' Before ruling, however, the court interrogated the defendant from what must have been a transcript of the proceedings before the magistrate from which it appears that he gave affirmative answers to his own counsel's inquiries directed to showing that his plea was entered knowingly, understandingly, freely and voluntarily. The defendant conceded that the transcript correctly reflected what transpired, but stated: 'I had been on the stuff a couple of months, Your Honor, and I was using a tremendous amount at that time. And it works on your mind, you know, and at that time I didn't even know what was going on, really.'

At the conclusion of its review of the transcript of the prior proceedings, which has not been made part of the record before this court, the superior court denied the motion. It then reviewed and denied the two other motions referred to above. In the course of the proceedings on these motions it was brought out that the defendant had been confined at the Alameda County Hospital at Fairmont.

Defendant personally, and through his counsel, advised the court that he had a motion for a writ of habeas corpus to file and present to the court. The following then ensued: 'The Court: Well, do you think this is the proper Court in which to file it? Mr. Evans: I have advised Mr. Brotherton that I believe the D.C.A. is the appropriate forum for any and all writs of habeas corpus, or any other similar writs he intends to file. I would suggest to him he so file it. The defendant: I am sorry. I misunderstood. The Court: You see, you come before this Court and you are in custody; you stand convicted of two felony counts. Now, the writ would not lie here. The Defendant: I see. The Court: I don't know that it lies anywhere, but it doesn't lie here. The Defendant: Well, Your Honor, I am not versed in the art of law, and I just don't know these things. I'm sorry.' The contents of this proposed motion are not part of the record so it is impossible to review the propriety of the court's ruling in rejecting it, even were it reviewable on appeal from the judgment as a ruling on a question of law prior to judgment which affected a substantial right of the defendant (see Pen.Code § 1259). The denial of an application for a writ of habeas corpus is not appealable. (People v. Del Campo (1959) 174 Cal.App.2d 217, 221, 334 P.2d 339; People v. Lempia (1956) 144 Cal.App.2d 393, 396, 301 P.2d 40 [cert. denied 353 U.S. 916, 77 S.Ct. 671, 1 L.Ed.2d 667]; People v. Vega (1955) 136 Cal.App.2d 202, 205, 288 P.2d 278; People v. Ryan (1953) 118 Cal.App.2d 144, 149, 257 P.2d 474; and cf. Pen.Code § 1506.) It may be assumed that the refusal to entertain and rule on a petition for a writ of habeas corpus could be the subject of review in appropriate proceedings. In the absence of a record of the content or substance of the application, and in view of the nonappealability of a denial of the application, these proceedings do not present that issue in reviewable form.

The court then denied probation and had the defendant arraigned for judgment by the clerk of the court. In response to the appropriate inquiry defendant's counsel stated: 'At this time, on the defendant's behalf, we have no legal cause, Your Honor.' The court thereupon imposed judgment of concurrent sentences to state prison. The judge recommended that defendant be held in the medical facility in Vacaville for treatment of his physical and mental illnesses.

Section 1018 of the Penal Code provided and provides in part as follows: 'On application of the defendant at any time before judgment the court may, * * * for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. * * *

'This section shall be liberally construed to effect these objects and to promote justice.' ²

The parties agree that this review is governed by general principles which were last set forth by this court as follows: 'The granting or denial of a motion by a defendant to withdraw his plea of guilty rests in the sound discretion of the trial judge and his decision will not be disturbed on appeal unless an abuse of that discretion is clearly shown. (People v. Ottenstror (1954), 127 Cal.App.2d 104, 109, 273 P.2d 289; People v. Beck (1961), 188 Cal.App.2d 549, 552, 10 Cal.Rptr. 396; People v. Parker (1961), 196 Cal.App.2d 704, 708, 16 Cal.Rptr. 718.) A defendant seeking to withdraw his plea of guilty and substitute a plea of not guilty must show good cause for such application. (Pen.Code, § 1018.) 'While a plea of guilty may be withdrawn pursuant to Penal Code section 1018 by reason of mistake, ignorance, inadvertence or any factor that overcame the defendant's exercise of a free judgment, the basis of the motion for relief 'must be established by clear and convincing evidence.'' (People v. Cooper...