People v. Francis

• Citation: 267 P.2d 8,42 Cal.2d 335
• Decision Date: 25 February 1954
• Docket Number: Cr. 5549
• Court: California Supreme Court
• Parties: PEOPLE v. FRANCIS.

Page 8

267 P.2d 8

42 Cal.2d 335

PEOPLE v. FRANCIS.

Cr. 5549.

Supreme Court of California, In Bank.

Feb. 25, 1954.

William W. Larsen, Ray L. Smith, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Alan R. Woodard, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant was charged by information in two counts with passing two checks without sufficient funds with the intent to defraud; both checks (one in each count) were passed on the same day, in the same place, Bennie's Clubhouse, to different employees in that place and drawn on the same bank; one (count one) was for $60, the other (count two) for $25. He was also charged with a prior conviction and imprisonment for conspiracy to commit pandering.

Defendant with his counsel, Mr. Testa, pleaded not guilty to both counts on his arraignment on April 25, 1952, and trial was set for June 19, 1952. On June 3rd, defendant substituted Mr. Larsen as his attorney in place of Mr. Higgins. (What happened to Testa does not appear.) On the day set for trial (June 19th) defendant and his counsel Larsen requested and were granted a continuance to July 30th. On that date defendant and his counsel asked and were permitted to withdraw his plea of not guilty to count one, and pleaded guilty to that count; he admitted the prior conviction; he waived time for sentence on that count and was granted leave to apply for probation. The hearing for probation, sentencing for count one, and disposition of count two were set for September 12, 1952. The probation officer's report, recommending denial, was filed September 11th. On the 12th, defendant and counsel appeared and the matters to be considered at that time were continued at defendant's request to October 3, 1952. On that date at defendant's request the hearing was continued to October 10th. On the 10th, defendant with his counsel moved to withdraw his plea of guilty to count one. That motion and the application for probation were denied and sentence was pronounced. Defendant thereupon gave notice of appeal. Thereafter defendant's motion to vacate the judgment and for permission to withdraw the appeal was denied. After probation was denied and judgment given, the second count was dismissed by the court on the motion of the prosecuting attorney in the 'interest of justice.'

Defendant appeals from the judgment and the denial of his motion to withdraw his plea. Inasmuch as an order denying the application to withdraw the plea of guilty by the defendant is not appealable People v. Shaffer; 130 Cal.App. 749, 20 P.2d 345; People v. Block, 134 Cal.App. 217, 25 P.2d 242; People v. Brickert, 3 Cal.App.2d 474, 39 P.2d 450; People v. Ramey, 135 Cal.App. 573, 27 P.2d 941; People v. Griffin, 100 Cal.App.2d 546, 224 P.2d 47; People v. Tidwell, 108 Cal.App.2d 60, 238 P.2d 21; Pen.Code, § 1237, the appeal therefrom is dismissed.

By way of amplification, the reporter's transcript of the events on September 12, 1952, when the continuance was granted, shows that defendant's counsel had read the probation report and wanted the continuance because of some derogatory remarks stated therein to have been made by his wife. No suggestion of withdrawal of the guilty plea was made then or on October 3rd when a continuance was requested.

The same transcript shows that at the hearing on October 10th when defendant moved to withdraw his not guilty plea the motion was made under section 1018 of the Penal Code. ¹ His counsel stated that it had not 'occurred' to him until he read the probation report (which would have been September 12th) and talked to defendant that the latter had given the probation officer a 'complete denial and a full defense to the charge' to which he had pleaded guilty. He offered to prove that if defendant could be sworn he would testify as he stated to the probation officer, that is, he thought he had made arrangements to cover any possible overdraft and had no intention to issue a check without sufficient funds; that he would show mistake and inadvertence in making the guilty plea by affidavit or oral testimony. The probation report was offered. Counsel further stated that defendant had no intent to defraud; that the guilty plea was entered by inadvertence and ignorance in that defendant did not know there had to be an intent to defraud that if he had made arrangements to cover the check there would not be such intent. The district attorney opposed the motion.

The probation report shows defendant to have stated that 'in explanation' of the charge of insufficient funds he found it 'difficult to explain.' He was 'reasonably certain' 'the shortage would be taken care of at that time, however, through domestic problems I (he) failed to...