Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.


Cr. 2211.

Decided: May 05, 1942

William I. O'Shaughnessy, of San Francisco, for appellant. Earl Warren, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

The defendant was sentenced to a term in the state penitentiary upon his plea of guilty of a charge of burglary. Following the sentence he moved to set aside the judgment to permit him to withdraw his plea and stand trial upon a plea of not guilty. He appeals from the order denying this motion.

The motion was based upon the grounds that appellant had a meritorious defense, and that his plea of guilty was induced by duress, fraud and coercion. The appellant was caught by the arresting officer in the flat he was charged to have burglarized, and some of the stolen goods were taken from his possession at the time of the arrest. On this motion he admitted the burglary, and has not indicated what meritorious defense he might have made.

The charged fraud and coercion rests upon the alleged promises of the arresting officers, and of his former attorney, that if he should plead guilty five other charges of burglary would be withdrawn and he would be given a county jail sentence. The evidence supporting the motion is found in the affidavits and testimony of the appellant and two women friends. It is explicitly denied by the two police officers and appellant's former attorney. This was supplemented by the showing that the appellant had been convicted of five prior offenses, of which two burglaries had been reduced to petty theft with sentences in the county jail, because of his youth. The trial judge who sentenced the appellant in this case testified that, with the record of these offenses before him, he informed appellant's counsel before sentence, and in the presence of appellant, that he would under no circumstances agree to give appellant a jail sentence, but that his past record demanded a sentence to the state penitentiary.

With the evidence in conflict, and preponderating so heavily in favor of the state, the order denying the motion must be affirmed. People v. Deutsch, 16 Cal.App.2d 121, 122, 60 P.2d 155; People v. Von Badenthal, 8 Cal.App.2d 404, 413, 48 P.2d 82.

The order is affirmed.

NOURSE, Presiding Justice.

STURTEVANT and SPENCE, JJ., concurred.