People v. Tannehill

• Decision Date: 13 July 1961
• Docket Number: Cr. 1573
• Citation: 193 Cal.App.2d 701,14 Cal.Rptr. 615
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Lee TANNEHILL, Defendant and Appellant.

Page 615

14 Cal.Rptr. 615

193 Cal.App.2d 701

PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Lee TANNEHILL, Defendant and Appellant.

Cr. 1573.

District Court of Appeal, Fourth District, California.

July 13, 1961.

Hearing Denied Sept. 6, 1961.

Phillip Lee Tannehill, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

On October 5, 1954, by two separate informations filed in the Superior Court of Orange County, the defendant was charged with the crimes (1) of taking an automobile without the consent of the owner, allegedly occurring on September 26, 1954, being a violation of Section 503 of the Vehicle Code ¹ then in effect, and (2) of escaping from the custody of an officer, allegedly occurring on October 5, 1954, being a violation of Section 4532 of the Penal Code; was duly arraigned and advised of his right to counsel; indicated his desire to represent himself; pleaded not guilty to the offense of taking an automobile without the consent of the owner; and pleaded guilty to the offense of escape. A week later, the defendant appeared in court and changed his plea on the auto theft offense from not guilty to guilty. Thereupon he made an application for probation in both matters; a hearing was held thereon; the probation officer made his report and recommended denial of probation; at the commencement of the hearing the defendant was given a copy of this report and recommendation, which he read, but made no comments with respect thereto; and the application for probation was denied. At this time the defendant was a parolee of the Youth Authority; asked that he be discharged from that authority; and requested that he be 'admitted' to the Adult Authority. After discussing the matter of his request with him, the court sentenced the defendant to the State prison as to both offenses, the sentences to run concurrently. Judgments were pronounced on October 29, 1954.

During the week between the defendant's arraignment and his change of plea on the automobile theft count, he was visited by an investigator from the district attorney's office and signed a written confession as to that count, which was four pages in length and at the end thereof contained the following statement in his handwriting:

'The four pages are true and correct as I told them to Frank Oxandaboure of the District Attorney's office. I was not threatened or promised anything. Phillip Lee Tannehill.'

On July 18, 1960, the defendant filed a motion to vacate the judgment in both cases upon the ground that he was not informed of his right to counsel or his right to subpoena witnesses; was not presented with a copy of the complaints, the informations, or transcripts of his preliminary examinations; and that he changed his plea in the automobile theft case from not guilty to guilty in reliance upon the promise of an investigator for the district attorney's office that if he would do so he would be granted probation. This motion was equivalent to an application for a writ of coram nobis. People v. Shorts, 32 Cal.2d 502, 505, 197 P.2d 330; People v. Grgurevich, 153 Cal.App.2d 806, 810, 315 P.2d 391.

At the hearing upon his motion the defendant was present; was represented by the Public Defender; and testified that an investigator for the district attorney's office and a deputy district attorney interviewed him while he was in jail, after he had entered his plea of not guilty to the theft charge, and the investigator promised him that if he would change his plea to guilty he would be given probation or, at the most, a county jail sentence, and that in reliance upon this promise he made his change of plea. The investigator who obtained the written confession, on direct examination, testified that he did not make any promises to the defendant, but on cross-examination stated that he did not remember any conversation between them about probation.

In support of the stated grounds in his motion that he was not advised of his right to counsel or to call witnesses, and was not given a copy of any complaint, information, or transcript of the preliminary hearings, the defendant testified that he did not remember being so advised or receiving any such copies, but the court records establish the contrary. For reasons hereinafter noted, it is not necessary that we pass upon the availability of these grounds for a writ of coram nobis (See People v. Adamson, 34 Cal.2d 320, 326-327, 210 P.2d 13; People v. Fritz, 140 Cal.App.2d 618, 621, 295 P.2d 449.)

The trial court denied the motion to set aside the judgments, and the defendant appeals from this order.

On appeal the defendant contends, in substance, that the trial court should have accepted his contention that the judgments were the result of extrinsic fraud; that his testimony that he changed his plea in the automobile theft case from not guilty to guilty in reliance upon the promise of the investigator from the district attorney's office was uncontradicted; that the testimony of the investigator was not in conflict with his testimony in the premises; that the deputy district attorney who interviewed him did not deny the making of such a promise; and, therefore, his motion should have been granted.

The order of the trial court must be affirmed for two patent reasons, i. e., (1) the defendant did not establish the facts upon which he relies and, (2) he delayed unreasonably in asking for the relief requested.

A defendant who seeks to set aside his conviction by motion 'must proceed as one who is at least prima facie guilty; * * * and [he] has the burden of producing convincing proof of a fact which constitutes a legal ground for setting aside the judgment.' People v. Shorts, supra, 32 Cal.2d 502, 503, 197 P.2d 330, 333; People v. Cole, 152 Cal.App.2d 71, 73, 312 P.2d 701; People v. Flores, 147 Cal.App.2d 243, 246, 305 P.2d 90; People v. Fritz, supra, 140 Cal.App.2d 618, 621, 295 P.2d 449; People v. Ayala, 138 Cal.App.2d 243, 247, 291 P.2d 517.

The trial court was not required to accept the defendant's testimony in support of his motion even though it was uncontradicted. People v. Flores, supra, 147 Cal.App.2d 243, 246, 305 P.2d 90; People v. Fritz, supra, 140 Cal.App.2d 618, 621, 295 P.2d 449; People v. Curtis, 104 Cal.App.2d 219, 223, 230 P.2d 877; People v. Kirk, 98 Cal.App.2d 687, 692, 222 P.2d 976. There was a strong presumption that the judgment was valid in all respects People v. Shorts, supra, 32 Cal.2d 502, 508, 197 P.2d 330; People v. Ayala, supra, 138 Cal.App.2d 243, 246, 291 P.2d 517; People v. Thomas, 121 Cal.App.2d 754, 756, 264 P.2d 100; People v. Martorana, 118 Cal.App.2d 332, 334, 257 P.2d 998, and the trial judge was required to weigh the defendant's testimony against this presumption. People v. Cole, supra, 152 Cal.App.2d 71, 74, 312 P.2d 701. Furthermore, the defendant's testimony was not uncontradicted; the statement in his own handwriting, which was a part of the last page of his confession, declared that he 'was not threatened or promised anything.' In addition, the truth of his testimony was subject to question. The lack of any corroboration; the fact that approximately six years had expired since the events to which he was testifying had taken place; the direct contradiction by the court's records of many of his statements with respect to the alleged procedural irregularities about which he complained; his actions in making no objection to the probation officer's report which recommended denial of probation; his request that the court place him with the Adult Authority; and his failure to take any proceedings to set aside the judgment until the expiration of five years and seven months after entry thereof, all belie his testimony. Where the evidence is conflicting, or the truth of the testimony of the moving party is subject to question, the order of the trial court denying his motion to set aside a judgment of...