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Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph David CRUZ, Defendant and Appellant.

Cr. 23671.

Decided: November 29, 1973

William H. Waysman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Stanley E. Remelmeyer, City Atty., (Torrance), for plaintiff and respondent.

We have transferred this appeal from a judgment of conviction of the Municipal Court to this court on the certification of the Appellate Department of the Superior Court, on its own motion, pursuant to Rule 63 of the California Rules of Court.

The important question of law to be settled, as phrased by the Appellate Department, is: Does a defendant who appears without counsel and pleads guilty to a charge, and who has properly waived counsel, have an absolute right, on motion prior to judgment, to have such plea set aside and a plea of not guilty substituted under section 1018 of the Penal Code?

What is involved is a conflict between the decisions of this statewide court in the cases of People v. Ector, 231 Cal.App.2d 619, 42 Cal.Rptr. 388, and People v. Shaver, 239 Cal.App.2d 213, 48 Cal.Rptr. 572, regarding how a portion of Penal Code section 1018 should be interpreted.

The language in dispute is: ‘On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’

The quoted language is ambiguous as to that which the phrase ‘for good cause shown’ modifies and therefore applies. In Ector, 231 Cal.App.2d at page 625, 42 Cal.Rptr. 388, the court held that the phrase applied only to those defendants who were represented by counsel when they made their pleas of guilty. Shaver, 239 Cal.App.2d at page 217, 48 Cal.Rptr. 572, held to the contrary. The majority in the Appellate Department agreed with Ector. We do likewise.

As argued in Ector, from 1872 to 1949 the relevant statutory language was ‘the court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.’ This language meant that in all situations permission to withdraw a plea of guilty prior to judgment was entirely discretionary with the court. (People v. Griggs, 17 Cal.2d 621, 624, 110 P.2d 1031; People v. Dabner, 153 Cal. 398, 403, 95 P. 880.) It seems to us though that this statutory discretion could have been exercised properly to permit a withdrawal of a guilty plea only upon a showing of good cause.

Then came the 1949 amendment introducing the present language. (See Stats. 1949, ch. 1310, § 1, p. 2298.) It differentiated for the first time between those defendants represented by counsel when they made their pleas of guilty and those defendants unrepresented by counsel at that time. Such differentiation would be meaningless if the amendment left both classes of defendants in exactly the same position as regards their ability to withdraw prior to judgment their pleas of guilty. Ordinarily neither the law nor the Legislature engage in idle acts. (See Civ.Code, § 3532.) We believe and we therefore so hold that by the 1949 amendment the Legislature codified the existing decisional law on the withdrawal of guilty pleas prior to judgment by those defendants who were represented by counsel when they made their pleas, but made the subsequent withdrawal of such pleas mandatory for those who did not enjoy representation by counsel at the time of their making such pleas.1

This construction is also in harmony with the great importance now placed on the presence and assistance of counsel for a defendant when the defendant is making his plea of guilty. (See In re Tahl, 1 Cal.3d 122, 128, 81 Cal.Rptr. 577, 460 P.2d 449.) If having counsel at that time is so important, then defendants who did not have such assistance, whether by choice or not, should have an absolute right prior to judgment to withdraw their pleas of guilty. The possibility of abuse of this absolute statutory privilege, suggested by Shaver, 239 Cal.App.2d at pages 217 and 218, 48 Cal.Rptr. 572 and by the dissenting judge in the Appellate Department, does not outweigh the fundamental considerations of justice and fairness involved.

The judgment of the Municipal Court is reversed and the case is remanded to that court for further proceedings consistent with the views expressed in this opinion.


1.  As also argued in Ector, 231 Cal.App.2d at page 625, 42 Cal.Rptr. 388, this gives effect to the difference in the language used by the Legislature for the two classes of defendants. Furthermore, as the majority opinion of the Appellate Department pointed out, the phrase ‘for good cause shown’ indicates discretion; it is, on the other hand, inapplicable to a mandatory situation.We are happy to note further that the leading commentator on California law, B. E. Witkin, agrees with this construction of this portion of section 1018. (See Witkin, Cal. Criminal Procedure, 1973 Supp., § 261, p. 141.)

COBEY, Acting Presiding Justice.

ALLPORT and LORING,* JJ., concur.