People v. Kirk
| Decision Date | 29 July 1950 |
| Docket Number | Cr. 4428 |
| Citation | 220 P.2d 976,98 Cal.App.2d 687 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. KIRK. |
Sam Houston Allen, Los Angeles, for appellant.
Fred W. Howser, Attorney General, Donald D. Stoker, Deputy Attorney General, for respondent.
Defendant, Eric H. Kirk, appeals from an order denying his motion to set aside the plea of guilty made by him in the above entitled cause and the judgment made and entered pursuant thereto.
On October 21, 1948, defendant was charged by an indictment returned by the Grand Jury of Los Angeles County with five counts of abortion. Defendant at the outset pleaded not guilty to all Counts but his plea was changed to that of guilty as to Count III on the second day of trial. On May 5, 1949, defendant was sentenced to a term of imprisonment in San Quentin and Counts I, II, IV and V were dismissed. On August 22, 1949, defendant, through his present attorney, San Houston Allen, served and filed his motion for an order to set aside the plea and judgment and sentence imposed thereon. The motion was supported by affidavits of defendant, his wife, and his attorney, Mr. Allen. The motion was based in brief on the theory that defendant had not had a fair trial in that he had been induced to plead guilty because of representations made to him by his then attorney, Buron Fitts, that the Court, Judge Fricke, had agreed to grant him 'straight probation' if he would change his plea from that of not guilty, and that if he did not change his plea he would be accused of having attempted to bribe certain police officers.
Defendant's motion came on for hearing before Judge Fricke on September 19, 1949, at which time the affidavits in support thereof were uncontradicted. In the course of the hearing the motion was denied by the Court on the grounds that the affidavits were wholly insufficient, that he did not believe the affidavits, that they were inherently improbable, absolutely ridiculous and 'so terrifically apart from the actual facts as they are known to me and as they are known to Mr. Fitts * * * that he never would have made that kind of statement.' Before the hearing was concluded, on motion of the People, and over the objection of defendant, the ruling on defendant's motion was set aside to allow both parties to introduce testimony and further affidavits. At this time defendant's attorney requested orally that the Court disqualify himself on the ground of bias and prejudice, but the Court refused to do so. At the conclusion of the hearing the Court again denied defendant's motion on the ground there was no evidence to corroborate his statements; that the facts were not as he had set them forth, and that defendant had not brought himself within the rule of People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657. The trial judge further found that there was no evidence tending in the slightest degree to indicate that he had had anything whatsoever to do with the change of plea by defendant.
On this appeal, defendant maintains: (1) That the motion and affidavits were sufficient, as a matter of law, to require the court to grant the motion. He contends that the court was bound by the uncontroverted averments contained in the affidavits; (2) that the trial court was disqualified because of bias and prejudice against him and that the proceeding subsequent to the first denial of defendant's motion constituted only a 'semblance of a 'hearing' because the Court had previously found appellant's motion insufficient in point of law and the affidavits in support thereof untrue'; (3) that defendant's contention that he was intimidated by the threats of Police Officers Stoker and Davis and the fear of prosecution for attempted bribery was established by both affidavits and oral testimony, and that this evidence was neither contradicted nor impeached, but was corroborated, in part, by the evidence adduced by the People.
Defendant, in his affidavit, makes the following statements: That he was indicted and found guilty of the crime of abortion; that he had entered a plea of not guilty to the indictment and each of the five counts thereof; that he was arrested on or about the 24th of September, 1948, and that on the day of his arrest he was released on bail. Several days thereafter, according to defendant, Audre Davis and Charles Stoker, (officers of the Los Angeles Police Department) called upon him and told him that if he would pay them the sum of $2500 in cash no proceedings would be taken against him in connection with his previous arrest. At this time Stoker is alleged to have informed defendant that unless he did pay that sum they (Stoker and Davis) would 'see that you spend 20 years in prison,' and placed defendant under arrest and held him in his office for approximately three hours. During this time Stoker called a certain police officer on the telephone, told the officer that he had acted too hastily, and asked if the sum of $2500 would 'quash the charges then pending against defendant.' After this conversation Stoker informed defendant in the presence of his wife, and Officer Davis, that 'it was all arranged for the charges to be dismissed if the defendant would pay the sum of $2500.' After this, defendant was released from the custody of the two officers and told that he had better get the money by the first of the next week or they would put together a case that would keep him in jail for 20 years. Defendant alleges that he received several calls from Audre Davis inquiring as to whether he had been able to obtain the funds. Defendant averred that he had 'wire recordings' to substantiate this conversation. (No such recordings were ever produced.)
Defendant states that he retained an attorney, Buron H. Fitts, to represent him in the trial and arranged to pay him the sum of $2,000 for his services; and that he at all times informed Mr. Fitts that he was not guilty of the charges against him. Defendant's affidavit contains statements to the effect that his attorney, Buron Fitts, made certain representations to him concerning the advisability of withdrawing his plea of not guilty and entering a plea of guilty to one of the charges against him. Mr. Fitts is alleged to have told defendant that he, Fitts, was well acquainted with certain judges, and with Judge Fricke in particular. That he, Fitts, had been in the District Attorney's office with Judge Fricke; that while he was Lieutenant Governor he had been largely responsible for Judge Fricke's appointment to the bench; that he had talked with Judge Fricke and the District Attorney prosecuting the case and that it had been agreed between them that if defendant would plead guilty to one count the others would be dismissed, and he would be given straight probation. Fitts is also alleged to have told defendant that the court had given permission to the District Attorney to bring the bribery charges into the case if defendant did not change his plea.
Defendant stated that at the time the jury was impaneled, and in the presence of the prospective jurors, the attorney for his codefendant Tully, informed the court that his client desired to withdraw his plea of not guilty and enter a plea of guilty and that, at that time, defendant said, in substance, to Fitts: 'Surely you are not going to stand for this jury to be picked from this venire who heard my codefendant offer to plead guilty, are you' and that Fitts answered that he knew what he was doing and if defendant would take his advice he would get him straight probation.
Marion Kirk, wife of defendant, filed an affidavit in which she stated that she had heard the conversation between her husband and the two police officers, and the conversation between her husband and Mr. Fitts as related in his affidavit. She corroborated her husband's statements that Fitts had said he had an agreement with the court whereby defendant was to be given straight probation.
Fitts, in his affidavit, denied, generally, all the material charges made by...
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