PEOPLE v. FRANCIS (1953)

Defendant appeals from a judgment after his plea of guilty to issuing a check without sufficient funds. There are also (1) a purported appeal from the order denying defendant's application to withdraw his plea of guilty and enter a plea of not guilty, (this was a nonappealable order and must be dismissed, see People v. Tidwell, 108 Cal.App.2d 60, 62[1], 238 P.2d 21; People v. Morgan, 9 Cal.App.2d 612, 617[4], 50 P.2d 1061), and (2) the order denying his motion to vacate and set aside his judgment.

Facts: April 25, 1952, defendant was arraigned on an information charging two counts of issuing checks without sufficient funds. Defendant entered a plea of not guilty to each count as charged in the information and the case was set for trial on June 19, 1952.

June 3, 1952, defendant substituted William W. Larsen as his counsel and the case was thereafter continued to June 30, 1952.

On the latter date defendant represented by his present counsel requested permission to withdraw his plea of not guilty to the first count of the information which was granted and defendant entered a plea of guilty thereto, and was given permission to file an application for probation. After several continuances the application for probation came on for hearing on October 10, 1952, at which time defendant made a motion under section 1018 of the Penal Code to withdraw his plea of guilty and enter a plea of not guilty. In support of his motion he made an offer of proof to the effect that if defendant were permitted to take the stand and testify he would testify to substantially the same matters as was contained in his statement to the probation officer, to wit, that he thought he had made arrangements to cover the checks which he had issued, and that he had no present abiding intention at the time to issue a check without sufficient funds.

Defendant's motion was denied as was his application for probation and he was sentenced to serve a term in the state prison.

Thereafter defendant on the grounds heretofore stated made a motion to vacate and set aside the judgment which was also denied.

Question: Did the trial court abuse its discretion in denying defendant's application to (1) withdraw his plea of guilty and enter a plea of not guilty, and (2) vacate and set aside the judgment?

No. Section 1018 of the Penal Code provides in part: ‘* * * On application of the defendant at anytime before judgment the court may, * * * for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’ (Emphasis added.)

In construing this section it has been held that the matter of permitting withdrawal of a plea of guilty and the substitution of a plea of not guilty is within the sound discretion of the trial judge whose action must be upheld unless a clear and convincing abuse of discretion is shown. (People v. Griffin, 100 Cal.App.2d 546, 548[2], 224 P.2d 47; People v. Outcault, 90 Cal.App.2d 25, 29[6], 202 P.2d 602.)

It is likewise settled that in determining a motion for permission to withdraw a plea of guilty and enter a plea of not guilty pursuant to the provisions of section 1018 of the Penal Code, whether oral evidence shall be received and defendant examined upon such motion, rests solely in the discretion of the trial judge. (People v. Kirk, 109 Cal.App.2d 203, 209[6], 240 P.2d 630). Since a plea of guilty admits every element of the offense as charged (People v. Outcault, supra, 90 Cal.App.2d 29[5], 202 P.2d 602), defendant by his plea of guilty admitted he had the intent of issuing a check knowing he had insufficient funds in the drawee bank to cover it.

Applying the foregoing rules to the facts of the present case it is clear that the trial court did not abuse its discretion in denying defendant permission to introduce evidence in support of his motion to withdraw his plea of guilty or in denying such motion.

People v. McGarvy, 61 Cal.App.2d 557, 142 P.2d 92, is clearly distinguishable on its facts from the present case. The defendant there pled guilty to a charge of manslaughter after having been permitted to talk to an attorney for only 20 to 30 minutes, who advised him to plead guilty. Thereafter he was refused permission to talk to anyone and permission to see anyone was denied. Also McGarvy had only an eighth-grade education. The appellate court properly held there was an abuse of discretion under such facts in refusing to permit defendant to withdraw his plea of guilty.

The record is devoid of any such situation in the case at bar. On the contrary, a plea of not guilty was originally entered April 25, 1952; thereafter defendant substituted his attorneys and when the case was called for trial July 30, 1952, he was permitted, while represented by an attorney, to withdraw his plea of not guilty and enter a plea of guilty. There is nothing in the record to indicate defendant was not guilty or that he entered his plea of guilty while under the influence of any misrepresentation, fraud or other improper inducement.

He has failed to show any prejudicial error in the proceedings in the trial court.

The judgment and order denying defendant's motion to vacate and set it aside are each affirmed. The purported appeal from the order denying defendant's motion to withdraw his plea of guilty is dismissed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.