People v. Burkett

• Decision Date: 28 May 1953
• Docket Number: Cr. 2416
• Citation: 257 P.2d 745,118 Cal.App.2d 204
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BURKETT.

Page 745

257 P.2d 745

118 Cal.App.2d 204

PEOPLE v. BURKETT.

Cr. 2416.

District Court of Appeal, Third District, California.

May 28, 1953.

Robert M. Cole, Davis, for appellant.

Edmund G. Brown, Atty. Gen., and Gail A. Strader, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice.

By an information filed by the District Attorney of Yolo County, appellant, Dee Willie Burkett, and his brother, Earl H. Burkett, were charged with two counts: Count One, forcible rape, and Count Two, intent to commit rape. On August 22, 1952, a preliminary examination was held and both defendants were held to answer. On September 2, 1952, the defendants were arraigned in the Superior Court and each entered a plea of not guilty and demanded a trial by jury.

On September 22, 1952, the said defendants and their counsel appeared in court, and defendant and appellant, Dee Willie Burkett, through his attorney, made application for permission to withdraw his plea of not guilty to Count One for the purpose of entering a plea of guilty to said Count One. The court, after questioning the appellant, granted the application and set aside the appellant's plea of not guilty. On motion of the attorney for appellant, with the consent of the district attorney, Count Two of the information was dismissed as to appellant. Appellant ws then rearraigned on Count One and entered a plea of guilty to the crime of rape. Thereupon on motion of the District Attorney the court ordered Counts One and Two of the information dismissed as to defendant Eral H. Burkett.

On October 13, 1952, appellant's present counsel was substituted as counsel for appellant, and filed a motion to allow appellant to withdraw his plea of guilty and enter a plea of not guilty. On October 20, 1952, a hearing was had upon this motion and also for the purpose of considering appellant's application for probation and the passing of judgment and sentence upon appellant. The court denied the motion to set aside the appellant's plea of guilty and also denied appellant's application for probation. Judgment was pronounced and appellant was sentenced to imprisonment in the state prison. This appeal is from said judgment.

Appellant's sole ground of appeal is that the trial court abused its discretion in refusing to grant appellant's motion to withdraw his plea of guilty and enter a plea of not guilty.

Section 1018 of the Penal Code provides in part as follows:

'* * * On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, 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.'

In People v. Tidwell, 108 Cal.App.2d 60, at page 63, 238 P.2d 21, at page 22, this court said:

'A defendant desiring to change his plea must show good cause therefor; and the granting of such an application is a matter within the sound discretion of the trial judge, whose decision will not be disturbed on appeal except for an abuse of discretion. People v. Morgan, supra, 9 Cal.App.2d at page 615, 50 P.2d 1061; People v. Dabner, supra, 153 Cal. at page 403, 95 P. 880; People v. Price, supra, 51 Cal.App.2d at page 718, 125 P.2d 529.'

In People v. Griffin, 100 Cal.App.2d 546, at page 548, 224 P.2d 47, 49, the court said:

'* * * While a plea of guilty may be withdrawn for mistake, ignorance, inadvertence or for any other factor overreaching a defendant's free and clear judgment, the fact of such mistake, fraud, duress or overreaching must be established by clear and convincing evidence, and an appellate court may conclude that the motion was properly denied where the defendant acted with knowledge of the facts and on advice of his counsel. People v. Butler, 70 Cal.App.2d 553, 561, 161 P.2d 401; In re Hough, 24 Cal.2d 522, 531 ff., 150 P.2d 448; People v. Gottlieb, 25 Cal.App.2d 411, 415, 77 P.2d 489.

* * *

* * *

'Since there is no evidence of duress, fraud, threats, promises or other facts overreaching the free will and judgment of the defendants the cases cited by them, People v. Schwarz, 201 Cal. 309, 257 P. 71, and People v. Grant, 97 Cal.App. 60, 274 P. 1005, 275 P. 838, are not applicable.'

In People v. Outcault, 90 Cal.App.2d 25, at pages 29-30, 202 P.2d 602 at page 604 the court said:

'* * * The plea of guilty constitutes an admission of every element entering into the offense charged, and constitutes a conclusive admission of defendant's guilt. (People v. Brown, supra , 36 P.2d 194.)

'A motion to withdraw a plea of guilty, pursuant to the provisions of section 1018 of the Penal Code, is addressed to the sound discretion of the trial court, and in considering such a motion the doctrines of 'presumptive innocence' and 'proof beyond a reasonable doubt' are inapplicable, since defendant has already admitted his guilt by his plea of guilty. The question before the trial court was: Was the plea of guilty entered because of (a) duress, (b) fraud, (c) other forces overraching the free will of defendant, or (d) was there a strong and convincing showing that defendant has been deprived of any legal right by an extrinsic cause? (People v. Gottlieb, 25 Cal.App.2d 411, 415, 77 P.2d 489; People v. Lamb, 64 Cal.App.2d 409, 411, 148 P.2d 873; People v. Price, 51 Cal.App.2d 716, 718, 125 P.2d 529.)'

Applying the foregoing legal principles of law to the facts of the instant case we find that appellant and his brother were charged with the crime of rape and also the crime of intent to commit rape. They were represented by counsel at the preliminary examination and were held to answer. Upon being arraigned in the Superior Court and while represented by counsel they entered pleas of not guilty. Three weeks later appellant appeared in court with his counsel and made application for permission to withdraw his plea of not guilty to Count One, the charge of rape, and to enter a plea of guilty thereto. The court, before granting the application, questioned appellant and advised him as to just what he was doing in withdrawing his plea of not guilty and entering a plea of guilty. Count Two against appellant was then dismissed and both counts were dismissed as to his brother, Earl H. Burkett. Then three weeks later a new counsel was substituted for appellant and filed a motion to withdraw appellant's plea of guilty. In support of such motion is appellant's affidavit that he pleaded guilty by mistake and under duress; that he is not guilty of the crime of rape; that he pleaded guilty under the mistaken belief that it was necessary for him to do so in order to have the charges against his brother dismissed; that his former attorney was so informed by the District Attorney of Yolo County.

The motion was heard before the same trial judge who granted appellant's application to withdraw his plea of guilty. Appellant testified at said hearing that he had had no sexual relations with the complaining witness; that he changed his plea to guilty because 'they told me if I would plead guilty my brother would be cut loose'; that when he pleaded guilty he thought he was pleading guilty to statutory rape; that he could not read or write.

Counsel for appellant referred to the transcript of the testimony at the preliminary examination and called the attention of the court to certain portions thereof, contending that the proxecutrix' testimony was beyond...