People v. Ivy

• Decision Date: 11 September 1958
• Docket Number: Cr. 6137
• Citation: 163 Cal.App.2d 436,329 P.2d 505
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John D. IVY Defendant and Appellant.

Page 505

329 P.2d 505

163 Cal.App.2d 436

The PEOPLE of the State of California, Plaintiff and Respondent, v. John D. IVY Defendant and Appellant.

Cr. 6137.

District Court of Appeal, Second District, Division 3, California.

Sept. 11, 1958.

Fredric A. Spindell, Los Angeles, for appellant under appointment of the District Court of Appeal.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

In a nonjury trial defendant was convicted of two counts of selling heroin. Health & Safety Code, § 11500. He appeals from the judgment.

At the time of his arraignment defendant pleaded not guilty to the two counts charged in the information. Thereafter, defendant, with counsel present, pleaded guilty to count I. ¹ At that time at defendant's request further proceedings as to count I and disposition of count II were continued. Later defendant, with counsel present, withdrew the plea of guilty to count I and pleaded not guilty thereto. The trial was had, and defendant was found guilty as charged in both counts.

Defendant testified in his own behalf and denied selling heroin, as charged in count I. In the course of his direct examination the following occurred:

'The Court: Now, on June 10th you appeared before me? The Defendant: Yes, sir, I did.

'The Court: At that time I asked you whether or not you were guilty of Count II which charges the sale of this particular----

'Mr. Chandler: Pardon me, I believe that was Count I.

'The Court: Count I? The Witness: Yes, sir.

'The Court: You told me you were guilty of that charge? The Witness: Yes, sir.

'The Court: Why did you tell me you were guilty of the charge? The Witness: Because the counselor I had at that time, he advised me if I did, it would be more lenient punishment put on me for one count than two.

'The Court: Do you remember my asking you if anybody promised you anything? The Witness: Yes, sir.

'The Court: You told me no one promised you anything? The Witness: Yes, sir, I did say that.

'The Court: Why did you say that if it wasn't true? The Witness: Because it was due to my inexperience and I was somewhat excited. He didn't promise me anything. He said it would be considered and I would have a chance of more lenient punishment if I did plead guilty to one count rather than be found guilty of two; and not having been in Superior Court before, why, I counted on his advice and accepted his advice, being a lawyer, that he would give me the best advice.'

Defendant was then examined further by his counsel. In the course of this examination the following occurred:

'The Court: You stated to the Court awhile ago that the reason you pleaded guilty to the one count was because your attorney told you it would be easier for you if you had one count rather than two. But if you were not guilty of any of the counts why did you agree to enter a plea of guilty to one? The Witness: Judge, your Honor, he was telling me that I was charged with this narcotics, and that there was this public sentiment against it, and the average citizen would look down on it and consider me guilty without any explanation because of the word narcotic. People are prejudiced against the subject.

'The Court: You mean to tell me he told you the Court would find you guilty simply because of public sentiment; the Court would find you guilty regardless of what the truth was? The Witness: More or less, yes, sir, that is what he meant, that my chances were very slim because it involved narcotics; and there was being so many arrests, and people were going to prison for it, and my chances would be very slim, according to the transcript we had read over together.'

Defendant's only point is that the court committed prejudicial error in the examination with respect to his plea of guilty to count I. People v. Ryan, 82 Cal. 617, 23 P. 121, held that after a plea of guilty has been withdrawn by permission of the court, and the plea of not guilty substituted, as provided by section 1018 of the Penal Code, the plea of guilty becomes functus officio, and cannot be proved on the trial as an admission or confession of the defendant; that to receive the evidence would defeat the privilege granted by section 1018 of the Penal Code. ² People v. Boyd, 67 Cal.App. 292, 227 P. 783, was a prosecution for obtaining money by false pretenses. The defendant's offer to plead guilty to one offense charged if the court would continue the case was admitted in evidence over objection. The District Court of Appeal held that the trial court erred in overruling the objection but that the error was not prejudicial. In denying a hearing the Supreme Court said (67 Cal.App. at page 302, 227 P. at page 786):

'We deem it proper, however, to say that we disagree with that portion of the opinion which holds that it was error for the trial court to overrule the objection of the defendant to the admission in evidence of the offer on his part to plead guilty to one offense charged in the information. The action of the defendant in that regard was an admission on his part of the truth of the charge that he obtained money under false pretenses, which, with the other evidence, was properly left to the consideration of the jury. People v. Jacobs, 165 App.Div. 721, 151 N.Y.S. 522. Such an admission was not, of course, conclusive evidence against the defendant. It was competent evidence merely; its weight and sufficiency being proper subjects for consideration by the jury. State v. Bringgold, 40 Wash. 12, 17, 82 P. 132. When the fact was established that the admission had been made by the accused, the admission was not before the jury as testimony by him establishing the truth of all or any part of the allegations of the information, but the fact that he had made it was before them, and was relevant as being inconsistent with his claim to the jury that he did not obtain any money under false pretenses from the complaining witnesses, and was not guilty. State v. Carta, 90 Conn. 79, 96 A. 411. The defendant's own admission, voluntarily made, was clearly competent evidence against him. That he made the admission in court can detract nothing from its relevancy or its competency. Ehrlick v. Commonwealth, 125 Ky. 742, 102 S.W. 289, 128 Am.St.Rep. 269; People v. Gould, 70 Mich. 240, 38 N.W. 232, 14 Am.St.Rep. 493.

'The opinion of this court in People v. Ryan, 82 Cal. 617, 23 P. 121, in which it was held to be error to introduce in evidence a plea of guilty after it had been withdrawn by permission of the court and a plea of not guilty substituted, seems to be out of...