People v. Ector
| Citation | 231 Cal.App.2d 619,42 Cal.Rptr. 388 |
| Decision Date | 07 January 1965 |
| Docket Number | Cr. 10127,10128 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Rayve ECTOR, Sr., Defendant and Appellant. |
Peter D. Bogart, for appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George Roth, Deputy Atty. Gen., for respondent.
*
In number 10127 defendant appeals from a judgment of conviction of a violation of section 476a of the Penal Code (). He also appeals from 'the denial of certain motions after judgment' none of which are specified in the notice of appeal. It appears from the record that after judgment the following motions were made and denied: (1) for new trial, (2) for leave to move for a change of plea, (3) for an order in arrest of judgment, and (4) for setting bail on appeal. A motion for new trial must be made before judgment. (Pen.Code § 1182; People v. Fry, 137 Cal.App. 525, 527, 31 P.2d 204.) Penal Code, section 1018 provides that an application for change of plea shall be made before judgment. See, People v. Wade, 53 Cal.2d 322, 339, 1 Cal.Rptr. 683, 348 P.2d 116. Such as application made before judgment and denied will be reviewed on the appeal from the judgment. No contentions are made as to the other two denied motions and they will be considered as abandoned.
In number 10127 defendant was charged with issuing four checks totalling $205.50 without sufficient funds in violation of section 476a of the Penal Code. He was arraigned on December 19, 1963, his attorney not being present, and the plea was continued to January 2, 1964, at which time, after defendant requested that the matter proceed without his attorney being present, he pleaded 'Not Guilty.' Trial was set for February 4, 1964, and continued until March 2, 1964, because of illness of defense counsel. On March 2, 1964, defendant appeared in court without counsel, withdrew his plea of not guilty and entered a plea of guilty. A probation officer's report was ordered and further proceedings continued to April 6, 1964. Further continuances were granted to the 9th and 17th of April 1964, at which later date defendant appeared with his counsel who at that time moved to set aside the plea of guilty and to enter a plea of not guilty, which motion was denied. Probation was denied and defendant sentenced to state prison.
Defendant contends that the court erred in permitting defendant to withdraw his plea of not guilty and plead guilty in the absence of counsel of record. We are constrained to agree. On the date set for trial, defendant's then attorney of record was not present when the case was called and defendant indicated a desire to withdraw his plea of not guilty. The court, however, decided to pass the matter to await counsel's arrival. After a recess the matter was again called but defendant's counsel had not arrived. Without any substitution of attorneys or request by defendant to proceed in propria persona and in the absence of defendant's attorney of record, the court accepted from defendant a plea of guilty. The record does not disclose that defendant's counsel ever consented to a change of attorney or to the change of plea nor does the record show that an order for change of attorney was entered by the court. Defendant's then counsel remained attorney of record and the trial court erred in allowing defendant to proceed in person. (In re Martinez, 52 Cal.2d 808, 813, 345 P.2d 449.)
The trial court also erred in accepting a plea of guilty from defendant without fully complying with section 1018 of the Penal Code. The colloquy between the court and defendant which took place at the time is set forth in the footnote below. 1
Penal Code, section 1018, provides, in part: 'No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall any plea of guilty of any other felony be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him of his right to counsel and unless the court shall find that the defendant understands his right to counsel and freely waives it and then, only if the defendant has expressly stated in open court, to the court, that he does not wish to be represented by counsel.' While the colloquy footnoted shows substantial compliance with the requirement of that section that the defendant state to the court 'that he does not wish to be represented by counsel' there was no adequate compliance, however, with the requirement that the court 'first fully inform him of his right to counsel * * *.' As the Supreme Court said in In re Martinez, supra, 52 Cal.2d 808, 814, 345 P.2d 449, 452: 'The statute * * * was designed to ensure that a defendant appearing without counsel is aware of his right to counsel at the time he pleads guilty.' (Emphasis added.) It is not met by having been so advised when he was arraigned on December 19, 1963 almost eleven weeks before that time. Furthermore, the required finding that 'defendant understands his right to counsel and freely waives it' was not expressly made by the trial judge and under the circumstances cannot be implied from any statement by the court in the quoted colloquy. The court made no inquiry to discover whether defendant had the experience and capacity to understand his rights or to determine whether in pleading guilty 'to this one count,' he clearly understood he was pleading guilty to a felony and not a misdemeanor, the information having charged in one count the issuance of four checks, each less than $100, but in the aggregate in excess of $100.
Closely related to the problem of preventing an improvident plea of guilty is that of allowing its withdrawal. That right and the conditions of its exercise are stated in said section 1018 of the Penal Code 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.' Such a motion was here made before judgment and denied. When enacted in 1872, that portion of said section 1018 dealing with withdrawal of a plea of guilty read: 'The Court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.' There was no distinction between a plea of guilty entered with or without counsel, and it was held that even a plea of guilty by a defendant without counsel could only be withdrawn for good cause shown. (People v. Wells, 77 Cal.App.2d 520, 175 P.2d 595.) In 1949, that portion of section 1018 was amended to read as above quoted. From the juxtaposition of the permissive clause relating to pleas of guilty entered with representation by counsel and the mandatory clause relating to such plea entered without counsel, we conclude that the prepositional phrase 'for good cause shown' does not apply to a plea of guilty entered by a defendant without counsel. To apply the phrase 'for good cause shown' to application for withdrawals of pleas entered with counsel as well as without counsel would violate the principle of statutory construction that: 'When different language is used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning and effect.' (McCarthy v. Board of Fire Commrs., 37 Cal.App. 495, 497, 174 P. 402, 403.) As we read the statute, a showing of good cause is not required on an application at any time before judgment to withdraw a plea of guilty by a defendant who appeared without counsel at the time of the plea and under those circumstances the court must permit the plea of guilty to be withdrawn and a plea of not guilty substituted. See, Witkin, 'California Criminal Procedure,' p. 239, § 260; p. 241, § 261. Only this interpretation is consistent with the closing provision of the section that it 'shall be liberally construed to effect these objects and to promote justice.' (Pen.Code, § 1018.) In People v. Ballentine, 39 Cal.2d 193, 246 P.2d 35 (1952), defendant, without representation of counsel, pleaded guilty to murder and robbery. The Supreme Court reversed the conviction for murder on the ground that the court had no power to accept the murder plea when a defendant is not represented by counsel. It also directed the trial court to permit the defendant to withdraw his plea of guilty to the robbery if he be so advised.
In number 10128, defendant appeals from a judgment of conviction and 'from the order revoking probation' in a former conviction of violation of Penal Code, § 476a. The order revoking probation is not appealable as proceedings were suspended upon arraignment for judgment and the defendant placed on probation. (People v. Robinson, 43 Cal.2d 143, 145, 271 P.2d 872.) The revocation of probation may be reviewed on the appeal from the judgment of conviction. The appeal on number 10128 must be dismissed for lack of a timely notice of appeal. On Friday, April 17, 1964, the court revoked probation and pronounced judgment and sentenced defendant to prison. The notice of appeal was filed with the clerk of the superior court on Wednesday, April 29, 1964, more than 10 days after the rendition of the judgment. In criminal cases an appeal must be taken within 10 days of rendition of the judgment or order appealed from. (California Rules of Court, Rule 31.) In both civil and criminal cases the time requirements for taking an appeal are mandatory, and appellate courts are without jurisdiction to consider a late appeal. (In re Del Campo, 55 Cal.2d 816, 817, 13 Cal.Rptr. 192, 361 P.2d 912; People v. Howerton, 40 Cal.2d 217, 219, 253 P.2d 8.)
We have concluded that even were we to...
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