People v. Wadkins

• Decision Date: 30 June 1965
• Docket Number: Cr. 8735
• Citation: 63 Cal.2d 110,45 Cal.Rptr. 173,403 P.2d 429
• Court: California Supreme Court
• Parties: , 403 P.2d 429 The PEOPLE, Plaintiff and Respondent, v. Dudlee WADKINS, Defendant and Appellant.

Page 173

45 Cal.Rptr. 173

63 Cal.2d 110, 403 P.2d 429

The PEOPLE, Plaintiff and Respondent, v. Dudlee WADKINS, Defendant and Appellant.

Cr. 8735.

Supreme Court of California, In Bank.

June 30, 1965.

Bertram H. Ross, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

This is an appeal from an order denying appellant's motion to set aside a plea of guilty and from the judgment entered pursuant thereto. For the reasons set forth below that order must be reversed.

On August 20, 1963, an information was filed, charging defendant with forgery of an endorsement (Pen.Code, § 470). On the 22d defendant appeared in Department Southwest B (Judge Miller), the public defender was appointed, defendant was arraigned, pleaded not guilty, and trial was set for October 7, 1963. Defendant was released on bail. On October 7 defendant again appeared before Judge Miller and, with his counsel present, withdrew his plea of not guilty, and entered a plea of guilty. A probation report was ordered, and proceedings continued to November 21. On February 7, 1964, the matter was called in Department 114, Judge Wright, for sentence. ¹ Defendant and counsel were present. Probation was denied, defendant sentenced to the state prison for the term prescribed by law, bail exonerated, and defendant remanded to the sheriff for delivery to the Director of Corrections.

On February 13, 1964 (and while defendant was yet in the custody of the sheriff), he addressed a document to the superior court which was filed on February 18. That document was entitled 'Writ of Coram Nobis in letter from (sic) as said Petitioner is not verse (sic) in Law.' It was properly captioned in all respects, including title of court and cause, and department. In the body, petitioner referred to the sentence of February 7, and alleged that he had changed his plea in Judge Miller's court relying on the promise that he would receive probation. He set forth the facts that the promise of probation was made by 'the investigating officer Sgt. Bunk of the Los Angeles 77th St. forgery detail,' and by 'Sgt. Raferty of the Los Angeles Central Robbery Division, * * * under the supervision of Federal Agent (F.B.I.) Carl Slaughter of the Bank Robbery Division. * * *.' The petition further explained that the promise of probation was made by the named officers in return for defendant's promise to aid them in the solution of a bank robbery, and that he did, at their request and at the risk of his life, obtain for the officers the two sawed-off shotguns which were used in that robbery. ² The document concluded with the sentence, 'I now make a motion to change my plea from guilty to not guilty on these grounds and that I am not guilty of said charge.'

On the same day the petition was filed, Judge Wright summarily denied it. Notice of denial was mailed to defendant in the county jail. Thereupon (on February 22) defendant forwarded to the Second District Court of Appeals, for filing, a document entitled a 'writ of Habeas Corpus.' That document repeated, in substance, the allegations of the petition filed in the superior court, alleged the denial of the latter, and also included allegations bearing on defendant's alleged innocence of the crime of which he had been convicted and sentenced. It contained no prayer, but was accompanied by a petition for stay of execution and bail. Division Two of the Second District Court of Appeal sent the two documents to the superior court, with instructions to file the same and treat it 'as a timely notice of appeal from Superior Court order denying petition for writ of coram nobis.' On receipt, Judge Wright denied the applications for bail and stay of execution, and the record was prepared and transmitted to the appellate court. Present counsel was then appointed to represent defendant on appeal. On affirmance, counsel sought and obtained a hearing in this court, and has beeen appointed for further proceedings here.

In his arguments before this court appellant's counsel treats the matter as an appeal from an order denying the motion to set aside 'a plea of guilty and a judgment entered pursuant thereto.' Respondent's arguments are predicated upon special rules applicable only to coram nobis. Although both counsel have argued these distinctions the differences are immaterial in light of the facts and law involved.

When the defendant, in propria persona, filed his first petition in the trial court he was, quite clearly, seeking vacation of the judgment and permission to change his plea. The niceties of language do not alter that basic fact. Since there had been no appeal from the judgment, and defendant was still in the custody of the sheriff, the trial court had jurisdiction to entertain such motion. Although a motion to change a plea of guilty must ordinarily be made before judgment is pronounced (Pen.Code, § 1018), both motions to vacate the judgment and petitions in the nature of coram nobis may be addressed to the trial court after judgment, if there has been no affirmance on appeal (Pen.Code, § 1265).

Thus, if the petition, which was here addressed to the trial court, contained allegations which, if true, would entitle defendant to the relief requested, that court erred in denying it summarily.

The respondent argues: (1) that coram nobis did not lie because all of the facts alleged were known to defendant at the time of entry of judgment; (2) that in any event, defendant received a hearing on his petition when the trial court summarily denied the same; and (3) if the original petition is treated as one to change plea, the order denying the same is nonappealable. For the reaons set forth below, the first contention is untenable. The second is supported only by citation of authorities which deny the right to a formal hearing when the evidence (presented with the petition) shows upon its face that there is no merit to the application for relief. The third is supported by the single citation of People v. Singh, 156 Cal.App.2d 363, 365-366, 319 P.2d 697, which was an appeal from a judgment of conviction, together with an attempt to appeal from an order (denying application to change plea) made prior to judgment. It did not involve a special order made after judgment. (See People v....