Wimbs, In re

• Decision Date: 16 December 1966
• Docket Number: Cr. 10239
• Citation: 65 Cal.2d 490,55 Cal.Rptr. 222
• Court: California Supreme Court
• Parties: , 421 P.2d 70 In re James WIMBS on Habeas Corpus. In Bank

Page 222

55 Cal.Rptr. 222

65 Cal.2d 490, 421 P.2d 70

In re James WIMBS on Habeas Corpus.

Cr. 10239.

Supreme Court of California,

In Bank.

Dec. 16, 1966.

Hearing Denied Feb. 1, 1967.

James Wimbs, in pro. per. and Robert N. Beechinor, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Derald E. Granberg, Deputy Atty. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner is serving sentences based on his pleas of guilty to three charges of feloniously issuing checks without sufficient funds. (Pen.Code, § 476a.) He fraudulently issued nine checks for amounts totalling more than $100 in San Joaquin County in 1964 and two checks, each for more than $100, in Stanislaus County in 1965. In January 1966 he was arrested in Los Angeles County and confessed to the offenses. In February 1966 he pleaded guilty to the 1964 offense in the San Joaquin County Superior Court, and that court suspended imposition of sentence and granted him probation. In March 1966, on petitioner's plea of guilty to the 1965 offenses, the Stanislaus County Superior Court imposed concurrent sentences to the state prison. On May 23, while petitioner was in the state prison under the Stanislaus County sentences, the San Joaquin County Superior Court revoked probation and sentenced petitioner to the state prison for the 1964 offense.

Petitioner seeks a writ of habeas corpus on the grounds that his guilty pleas were induced by misrepresentations, threats, and promises precluding his exercise of free will and judgment, and that the San Joaquin County Superior Court imposed sentence in his absence and in violation of his right to appear and defend in person and with counsel.

Habeas corpus proceedings have been invoked to explore contentions, similar to those of petitioner here, that a guilty plea was vitiated by the continuing coercive effect of an illegally obtained extrajudicial confession (In re Poe (1966) 65 A.C. 13, 51 Cal.Rptr. 896, 415 P.2d 784; In re Seiterle (1964) 61 Cal.2d 651, 657, 39 Cal.Rptr. 716, 394 P.2d 556), by misrepresentation and inadequacy of the public defender (In re Poe, supra, 65 A.C. at pp. 21--24, 51 Cal.Rptr. 896, 415 P.2d 784; In re Beaty (1966) 64 A.C. 823, 827, 51 Cal.Rptr. 521, 414 P.2d 817; In re Atchley (1957) 48 Cal.2d 408, 412--413, 310 P.2d 15; In re Hough (1944) 24 Cal.2d 522, 150 P.2d 448), and by threats and promises as to punishment made by defense counsel and reiterated or corroborated by the prosecuting attorney or the court (In re Atchley, supra, 48 Cal.2d at pp. 410, 414, 310 P.2d 15; In re Hough, supra, 24 Cal.2d at p. 527, 150 P.2d 448).

In petitioner's account of events leading to his pleas and sentences he charges the San Joaquin County public defender, district attorney, and judge of the superior court with misrepresenting that confessions obtained from him in violation of People v. Dorado (1965) 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361, were proper evidence against petitioner, and with threatening consecutive prison sentences if petitioner did not plead guilty and promising probation if he did. He charges similar misrepresentations, threats, and promises by the Stanislaus County public defender and district attorney. Petitioner's version of events, summarized in the margin, ¹ does not take into account the facts of record in the proceedings against him. The court records not only show that the proceedings were regular on their face but also refute the bases of petitioner's factual conclusion that his pleas were the product of official misrepresentations, threats, and promises.

Thus, petitioner asserts that on February 26 he appeared in the San Joaquin County Superior Court and pleaded guilty to six counts of violating section 476a after court and counsel had 'confronted' him with his illegally obtained confessions and made the claimed threats and promises. Petitioner's assertions are confuted by the record showing that on February 14 the district attorney filed the information charging one count of violating section 476a by issuance of nine checks totalling $102.72 and on the same day petitioner personally stated, in response to questioning by the court, that he was familiar with the allegations of the information and entered his guilty plea. The record further shows that on February 28, when petitioner was granted probation, the court and the public defender were not aware that petitioner was liable to be taken to Stanislaus County for prosecution there. ² Manifestly then petitioner is mistaken in his assertion that his guilty plea was induced by statements of the San Joaquin County Superior Court that led him to believe he would receive probation in Stanislaus County.

Petitioner avers that on March 2 Stanislaus County authorities took him from San Joaquin County to Modesto and then held him incommunicado for three days while unlawfully eliciting another confession. This averment is disproved by the record of the municipal court in Medesto showing that petitioner was arraigned there on the Stanislaus County complaint on March 3 at 9:30 a.m.

At the proceedings in Stanislaus County, ³ both in the municipal court and in the superior court, petitioner volunteered infor mation as to his offenses in other counties. He told the superior court, 'When I surrendered I told the whole thing, because I do want to make restitution.' Thereafter, at the probation and sentence hearing, the court stated, '(Y)ou have restitution to make in the event of probation that you will never be able to make. That's about the answer,' and petitioner said, 'That's about the answer.' Sentence was imposed and petitioner, having assumed in the Stanislaus County Superior Court an attitude of frank disclosure, then wrote to the San Joaquin County Superior Court the letter quoted in footnote 1, stating, 'You lied to me. They didn't give me probation like you promised.' In the light of the objective facts of record and of petitioner's misstatements as to those facts, we do not believe that his averments that his guilty pleas were involuntary raise a triable issue of fact.

Habeas corpus is available also to attack a judgment pronounced in violation of a defendant's rights 'to appear and defend, in person and with counsel' (Cal. Const., art. I, § 13). (In re Perez (1966) 65 A.C. 223, 229, 53 Cal.Rptr. 414, 418 P.2d 6). Petitioner contends that the San Joaquin County Superior Court's imposition of sentence on May 23, 1966, while petitioner was confined in the state prison, violated those rights. The Legislature, however, has provided a procedure for pronouncement of judgment in the absence of a defendant to whom the court has granted probation without imposition of sentence, who is thereafter imprisoned under a commitment for another crime, and who executes a written request, attested by a prison official, stating that the defendant 'wishes the court to impose sentence in the case in which he was released on probation, in his absence and without his being represented by counsel.' (Pen.Code, § 1203.2a.) ⁴ The San Joaquin County sentence of May 23 was imposed in compliance with section 1203.2a. ⁵

When the San Joaquin County Superior Court imposed sentence on May 23, it ordered that its sentence run consecutively with any other sentence petitioner might be serving. Thereafter on July 13, 1966, that court directed entry of a 'corrected' judgment ordering that its sentence run concurrently. The court was without power to thus 'correct' its sentence as pronounced and formally entered in the minutes. (In re Pedrini (1949) 33 Cal.2d 876, 879, 206 P.2d 699; People v. Behrmann (1949) 34 Cal.2d 459, 462, 211 P.2d 575; People v. Thomas (1959) 52 Cal.2d 521, 342 P.2d 889.) As the Attorney General points out, the purported 'correction' was not of merely clerical error or inadvertence but an attempt, in excess of the court's power, to revise its deliberately exercised judicial discretion. ⁶ (See also In re Sandel (1966) 64 A.C. 431, 50 Cal.Rptr. 462, 412 P.2d 806.)

Petitioner, however, contends that the San Joaquin County Superior Court was without power to make its initial order of May 23, 1966, that its sentence should run consecutively. This argument, presented in propria persona, rests on petitioner's misunderstanding of In re Nafe (1965) 237 Cal.App.2d 809, 812, 47 Cal.Rptr. 457, and In re Roberts (1953) 40 Cal.2d 745, 749, 255 P.2d 782. Neither of those cases holds or suggests, as petitioner argues, that a court that has withheld imposition of sentence and granted probation is without power thereafter to make its sentence consecutive to another sentence imposed while the defendant was on probation.

The order of the San Joaquin County Superior Court purporting to make its sentence run concurrently with the previously imposed sentence of the Stanislaus County Superior Court is set aside and the Adult Authority is directed to consider the sentence as consecutive in accordance with the judgment pronounced on May 23, 1966. The order to show cause is discharged and the petition for a writ of habeas corpus is denied.

McCOMB, PETERS, TOBRINER, MOSK, BURKE and PEEK, ^* JJ., concur.

1 Petitioner asserts that the following events led him to become 'the deluded instrument of his own conviction': He was arrested in Glendale on January 28, 1966, pursuant to a warrant issued in Downey on a forgery complaint. When he asked to telephone for bail and an attorney, the arresting officer slapped him and told him the Downey police would let him telephone after he had made a statement. Neither the Glendale police nor the other law enforcement officers through whose hands petitioner later passed informed him of his rights to counsel and to remain silent under People v. Dorado (1965) 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361. Because petitioner had been slapped when he first asked to telephone an attorney, petitioner did...