People v. Johns, Cr. 6559-6561

• Decision Date: 12 August 1959
• Docket Number: Cr. 6559-6561
• Citation: 173 Cal.App.2d 38,343 P.2d 92
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Ernest JOHNS, Defendant and Appellant.

Page 92

343 P.2d 92

173 Cal.App.2d 38

PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Ernest JOHNS, Defendant and Appellant.

Cr. 6559-6561.

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

Aug. 12, 1959.

Raymond Ernest Johns, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

This appeal involves three cases. In the first, numbered 6559, the District Attorney of Los Angeles County filed an information wherein defendant was accused of the crime of assault with intent to commit murder (Penal Code, Section 217) upon the person of Mildred Louise Johns on June 28, 1958. Subsequently, an amended information was filed, charging a second count of assault by means of force likely to produce great bodily injury (Penal Code, Section 245). On August 28, 1958, defendant appeared in court, accompanied by his counsel, and pleaded guilty to Count II of the amended information (Penal Code, Section 245). Count I (Penal Code, Section 217) was dismissed. On his plea of guilty as to Count II, defendant was sentenced to state prison. From this judgment defendant appeals.

Case Number 6560

In this case, by information filed by the District Attorney of Los Angeles County, defendant was accused of statutory rape (Penal Code, Section 261, subd. I), allegedly committed about June 15, 1958 upon the person of a female of the age of fifteen years. To this charge defendant entered a plea of not guilty. When defendant, represented by counsel, appeared for trial, a jury trial was duly waived, and by stipulation, the cause was submitted on the transcript of the evidence adduced at the preliminary examination. Defendant was adjudged guilty. He was sentenced to state prison, the sentence to run concurrently with other sentences pronounced against him. From such judgment of conviction, defendant filed notice of appeal.

Case Number 6561

In this prosecution a complaint was filed in the Municipal Court of the Pasadena Judicial District on August 8, 1955 charging defendant with having committed lewd acts upon the person of an eight-year-old child, in violation of Penal Code Section 288. Three counts were filed for three separate offenses, allegedly committed on July 1, 1955, July 29, 1955 and June 15, 1955. On August 8, 1955 defendant was held to answer for a violation of Section 702 of the Welfare and Institutions Code, a lesser offense than that charged in Count I, but necessarily included therein, and Counts II and III of the complaint were dismissed. He pleaded guilty to this charge on August 18, 1955 and was certified to the superior court for sentencing. A probation officer's report was ordered, as well as hearings under the Sexual Psychopathy Act. A psychiatric examination under Section 5504 of the Welfare and Institutions Code was also ordered.

On December 14, 1955 defendant was sentenced to one year in the county jail, sentence was suspended and he was granted probation for three years, to serve the first six months in the county jail, as well as comply with the usual conditions of probation.

On October 2, 1958 defendant's probation was revoked and he was given a county jail sentence of six months, to run concurrently with the other sentences imposed upon him. On October 14, 1958 defendant filed a notice of appeal from the order revoking probation.

By reason of the fact that defendant pleaded guilty to a violation of Section 245 of the Penal Code in case No. 6559, and because, in case No. 6561, defendant has appealed from an order revoking probation, a reporter's transcript has been brought here only in case No. 6560. We shall therefore, first give consideration to the appeals in cases numbered 6559 and 6561.

As to case No. 6559, the record reveals that appellant was originally charged with assault with a deadly weapon with intent to commit murder (Penal Code, Section 217); that subsequently, an amended information was filed which added Count II wherein appellant was accused of the crime of assault by means of force likely to produce great bodily injury (Penal Code, Section 245). The record further shows that in open court, with counsel of his own choosing present, appellant himself pleaded guilty to Count II of the amended information, as required by Section 1018 of the Penal Code. Thereupon Count I was dismissed. This plea of guilty was entered on August 28, 1958, and there is no indication in the record on appeal that any attempt was made to withdraw this plea, nor is there any indication in the record that appellant, represented as he was by counsel, was not aware of what was meant by a plea of guilty. Appellant urges that in this case, when he pleaded guilty, the corpus delicti was not established, and that he did not legally waive a trial by jury notwithstanding the fact that he pleaded guilty. Appellant relies upon the well established rule that a confession may not be introduced into evidence until sufficient proof of the corpus delicti has been offered (People v. Davis, 106 Cal.App. 179, 188, 289 P. 194). He asserts that, 'in all criminal prosecutions the defendant must be confronted with the witness against him, and all allegations must be proven'. He then argues that he was convicted of assault with a deadly weapon with intent to commit murder although 'no weapon was ever produced in court against the appellant'. However, as heretofore pointed out, this charge, contained in Count I of the amended information was dismissed. As to his claim that no corpus dilicti was proved as to Count II, to which he pleaded guilty and that his plea was therefore illegally received, appellant is in error. A plea of guilty amounts to more than an out-of-court confession. Such a plea is an admission of every element of the offense to which the plea is entered, and amounts to a conclusive admission of the guilt of the accused. A plea of guilty being a conclusive admission of guilt, raises no issue of fact and hence proof of the corpus delicti is unnecessary. People v. Ottenstror, 127 Cal.App.2d 104, 109, 273 P.2d 289; People v. Brown, 140 Cal.App. 616, 619, 36 P.2d 194. A valid judgment may, therefore, be pronounced on the basis of a plea of guilty (People v. Hickman, 204 Cal. 470, 476, 268 P. 909, 270 P. 1117; People v. Cooper, 123 Cal.App.2d 353, 356, 266 P.2d 566; People v. Bechtel, 124 Cal.App.2d 659, 660, 268 P.2d 1072; People v. Wilkins, 169 Cal.App.2d 27, 336 P.2d 540.

Appellant's contention that in this case, and in case No. 6561, in both of which he pleaded guilty, he '* * * could not have waived his rights to trial by jury, because of the fact that appellant could not read or write' is wholly without merit. In passing it might be noted that the brief prepared by appellant in the instant cases together with his notices of appeal, apparently in his own handwriting, would seem to belie appellant's present contention as to illiteracy or inability to read or write. However, in cases numbered 6559 and 6561, wherein appellant pleaded guilty, no such waiver of jury is required. The cases of People v. Wilkerson, 99 Cal.App. 123, 127, 278 P. 466, and People v. Benjamin, 140 Cal.App.2d 703, 295 P.2d 477, relied upon by appellant, simply hold that when there is to be a trial, the accused is entitled to one by jury unless he personally waives that right in open court. Manifestly, these and other cases in accord therewith, presupposes that there will be a trial. But, such is not the case in the instant proceedings wherein appellant pleaded guilty and no trial was necessary. The very purpose of a trial is to dispose of issues of fact and a plea of guilty not only disposes of but forecloses any such issues (People v. Brown, supra). Implicit in a plea of guilty is a waiver of trial by either judge or jury. Penal Code, Section 1041 specifies how an issue of fact arises and Section 1042 sets forth how it shall be tried. Since a plea of guilty does not raise an issue of fact, a trial provided for by Section 1042 becomes unnecessary (People v. Palmer, 49 Cal.App.2d 567, 575, 122 P.2d 109).

In case No. 6561, in which he was originally placed on probation, later revoked, appellant appears to seek a reversal of the order revoking his probation because the formalities of a trial were not present when such revocation was ordered. In this contention appellant cannot be sustained. There is no inherent right to a hearing preceding an order revoking probation, and an order granting probation may be revoked on the report of the probation officer alone (In re Levi, 39 Cal.2d 41, 44, 244 P.2d 403). Proof beyond a reasonable doubt is not a prerequisite to an order revoking probation (In re Young, 121 Cal.App. 711, 713, 10 P.2d 154). When it is shown that a probationer is engaging in criminal activities, probation may be revoked (People v. Martin, 58 Cal.App.2d 677, 137 P.2d 468). In the case now engaging our attention, appellant's plea of guilty in the assault case and his conviction in the rape case (No. 6560), hereafter to be discussed, justified revocation of probation previously granted, on the ground of appellant's continued criminal activities (People v. Wilkins, supra, 169 Cal.App.2d at page 33, 336 P.2d at page 544).

In case No. 6561, a complaint was filed against appellant in the Municipal Court of Pasadena Judicial District, wherein he was charged in three counts with a violation of Section 288 of the Penal Code. The record herein reveals that on August 18, 1955, in said municipal court with appellant and his counsel, together with the district attorney present, the following proceedings were had:

'Whereupon, with my consent and with the consent of Deputy District Attorney Robert Charles Lutz, and while his attorney was still present in Court with him, the said Defendant pleaded guilty to the offense of contributing to the delinquency of a minor, (a high misdemeanor), in violation of Section 702 of...