People v. Thompson

• Decision Date: 31 July 1970
• Docket Number: Cr. 18213
• Citation: 10 Cal.App.3d 129,88 Cal.Rptr. 753
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Walter THOMPSON, Defendant and Respondent. The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, Walter THOMPSON, Real Party in Interest. Civ. 36317.

Page 753

88 Cal.Rptr. 753

10 Cal.App.3d 129

The PEOPLE of the State of California, Plaintiff and Appellant, v. Walter THOMPSON, Defendant and Respondent.

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, Walter THOMPSON, Real Party in Interest.

Cr. 18213.

Civ. 36317.

Court of Appeal, Second District, Division 5, California.

July 31, 1970.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Harry B. Sondheim, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Richard S. Buckley, Public Defender of Los Angeles County, and James L. McCormick, Deputy Public Defender, for real party in interest.

SELBER, ^* Associate Justice pro tem.

From an order of respondent superior court setting aside defendant's plea of guilty, the People seek relief by both an appeal and petition for writ of mandate. Pursuant to stipulation the briefs filed in the writ proceeding have been deemed the briefs on appeal. Both matters are accordingly treated together in this opinion.

People contend: (1) that respondent court exceeded its jurisdiction in setting aside defendant's plea of guilty on its own motion after defendant Thompson expressly refused the court's invitation to so move, and (2) that they are entitled to relief either by way of an appeal or by mandamus.

The defendant was charged in a three count information with three separate violations of section 487, subdivision 3 of the Penal Code (grand theft auto). On January 9, 1970, defendant pleaded guilty to Count 1 and the matter of sentence and disposition of the remaining counts was continued to March 3, 1970. On that date the court heard the testimony of the investigating officer which developed various facts concerning the offense, including that others potentially involved therein had not been filed against by the office of the district attorney.

Following the hearing, but prior to sentence, the court stated:

'Mr. Thompson and Mr. Townsend (counsel for defendant), this is the time set for probation and sentence, sir. You have your choice of going forward with the probation and sentence, or you have your choice of withdrawing your plea, if you wish. But you'd have to consent to it.

'(Brief pause)

'MR. TOWNSEND: We'd like to go ahead with the probation report, if your Honor pleases.

'THE COURT: All right. Is that your desire, Mr. Thompson?

'THE DEFENDANT: Yes, your Honor.

'THE COURT: Well, before we do, I'm going to make a statement.'

The court then made a lengthy statement, culminating in its ruling. We set forth only a portion of that statement: 'I've been in this business going on the 20th year, and I was also in the Municipal Court for seven years. Now, I'm starting my tenth year as a Judge. And this is about the, I'd say, twentieth or thirtieth time that it's happened to me directly as a Judge, and the second time on the Superior Court.

'There are not derogatory remarks intended towards the Sheriff's Office, or any other law enforcement officer, but, this is, as far as I'm concerned--I will use the vernacular--it smells. This is what I call a typical case of--I'm just stating my opinion--this is a typical case of what I call the unholy condonation of 'legalized' receivers of stolen property. And that includes junk men, that includes wrecking yards, and that includes pawn brokers, who obviously receive stolen property.

'And I'm not even saying that this is the case. I'm not going to be the Judge on this case, if anything further were done. But for seven years I sat as a Municipal Court Judge and listened to what I call 'legalized' receivers of stolen property testify against other people and walk out of a court scott free.

'I'm not saying anything about Mr. Thompson. He has plead guilty to the charge. I have no doubt that Mr. Thompson was involved, too.' (Emphasis added.)

After discussing the factual situations of many cases over which he had presided as a Judge and expressing his view that law enforcement authorities 'condoned' this type of activity, the court made its ruling as follows: 'I'm sorry, Counsel. I will have no part of it.

'The plea of guilty will be set aside on the Court's own motion. This matter will be transferred to Department E to be reassigned elsewhere. This Court declares itself totally prejudice(d) in the matter.'

The posture of this case in respondent court is that it now awaits trial on the two remaining counts of the information not disposed of at the probation and sentence hearing and also Count 1 upon which the court had vacated the guilty plea. There is no issue raised in this proceeding, except as to Count 1.

The case of People v. Clark (1968) 264 Cal.App.2d 44, 70 Cal.Rptr. 324, is similar in many respects to the instant case. In Clark the plea of guilty was in effect vacated by the court when defendants indicated, in response to questions by the court, that they had not intended to cheat anyone as alleged in a forgery count filed against them. The court interpreted such statements as a protestation of innocence and as an implicit request by the defendants to withdraw their plea of guilty. Thereafter the defendants entered pleas of not guilty to a new information and were subsequently convicted of the crime. On appeal, defendants urged that inasmuch as their pleas of guilty had been accepted and entered upon the court's records, a subsequent prosecution for the same offense was barred. They argued that absent motions from them for a substitution of pleas, the trial court lacked authority to set aside their pleas on its own motion. The court in Clark in holding that the court did have the power to set aside the guilty pleas stated at pages 46--47, 70 Cal.Rptr. at page 325 as follows:

'Every court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process. The continued acceptance by the court of a guilty plea in the face of a defendant's suggestion that in fact he is not guilty runs contrary to all basic conceptions of justice under law. Whenever the superior court has reason to suspect that a defendant has pleaded guilty to a felony as a matter of expediency we think the court has inherent power to set aside the plea on its own initiative prior to the entry of judgment.'

In Clark the action of the trial judge in vacating the guilty pleas was held to be in response to the implicit request of the defendants. In the instant case the trial court acted strictly on its own, unbenefited by any request, implied or express, from the defendant, even though such a request was solicited. Although the probation report, which has been made a part of our record, does indicate that the defendant felt that he was 'framed' and that 'deep down in my heart * * * I am intersent (sic).' The fact remains that the court held a formal hearing at the time set for probation and sentence, following which he gave the defendant an opportunity to withdraw his plea and then further expressed his own view that 'I have no doubt that Mr. Thompson was involved. * * *' Certainly in setting aside the guilty plea the court did not act out of a conviction that the plea had been coerced or otherwise involuntarily entered, but rather from a belief that it would be unfair to try the defendant where other persons, potentially equally guilty, were not being prosecuted. That reason is erroneous.

In People v. Maldonado (1966) 240 Cal.App.2d 812, at page 816, 50 Cal.Rptr. 45, at page 47, the court stated: 'In the absence of evidence that the authorities had or have a policy and practice of unfair and unequal law enforcement, the fact that some wrongdoers are proceeded against while others, equally suspect are not, does not, of itself, amount to illegal discrimination.' (Ehrlich v. McConnell (1963) 214 Cal.App.2d 280, 288, 29 Cal.Rptr. 283; In re Finn (1960) 54 Cal.2d 807, 812--813, 8 Cal.Rptr. 741, 356 P.2d 685.) Mere laxity in enforcement of laws by public officials is not a denial of equal protection. (In re Finn, supra.)

It is true that the granting or denial of an application to withdraw a guilty plea rests in the sound discretion of the trial judge and that his decision is not to be disturbed on review unless a clear abuse of discretion is shown. (People v. Nooner (1965) 237 Cal.App.2d 210, 215, 46 Cal.Rptr. 689; People v. Gannaro (1963) 216 Cal.App.2d 25, 28, 30 Cal.Rptr. 711.) However that discretion is not unlimited. In People v. McDonough (1961) 198 Cal.App.2d 84, 90, 17 Cal.Rptr. 643, 646 the court defined the discretion vested in the trial court to set aside a plea of guilty as follows: 'This discretion means a sound judicial discretion--not an arbitrary or fanciful choice of alternatives, but a reasonable and fair judicial determination of what is right under the law as applied to the facts.'

We hold that respondent court abused its discretion in setting aside defendant's plea of guilty under the circumstances of this case. The defendant having been convicted upon his plea of guilty there remained nothing for the trial court to do other than to pronounce sentence. (People v. Superior Court (1962) 202 Cal.App.2d 850, 855, 21 Cal.Rptr. 178; People v. Goldstein, 32 Cal. 432, 433.)

There remains the question of whether despite the error of respondent court the People have a remedy to correct it.

We hold first that an appeal is not an available remedy to the People to set aside respondent court's order vacating defendant's plea of guilty. There is no provision in section 1238 of the Penal Code permitting an appeal from such an order. As stated in People v. Hale (1965) 232 Cal.App.2d 112, at page 125, 42 Cal.Rptr. 533, at page 541: 'The right to appeal from an order or judgment in a criminal case is purely statutory; no appeal by the People is proper unless expressly permitted by the Penal Code.' (People v. Valenti (1957) 49 Cal.2d 199, 316 P.2d 633.)

Section...