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IN RE: Maxine BROWN on Habeas Corpus. (1972)

Court of Appeal, Second District, Division 4, California.

IN RE: Maxine BROWN on Habeas Corpus.

Cr. 22019.

Decided: October 18, 1972

Maxine Brown, in pro. per. Joseph P. Busch, Dist. Atty., of Los Angeles County, Harry Wood, Head, Appellate Division, and Arnold T. Guminski, Deputy Dist. Atty., for real party in interest.

Petitioner was charged with robbery, in violation of section 211 of the Penal Code, the information alleging that she was armed with a knife at the time of commission of the crime. When first arraigned she pled not guilty. Thereafter, on May 11, 1972, represented by the public defender, as the result of a formal plea bargain, she pled guilty to robbery in the second degree1 . The reporter's transcript of those proceedings shows a full compliance with the requirements which the courts have imposed for the acceptance of such a plea. Subsequently, on June 8, 1972, when she appeared for formal sentencing, the public defender advised the court that petitioner desired to withdraw the guilty plea, plead not guilty and have a jury trial. The trial court denied that motion, saying:

‘THE COURT: Well, this matter was plea bargained at the time and she was asked at that time if she was guilty and she said she was guilty. We very carefully took the plea, as I recall, and I see no good cause for setting the plea aside.’

The trial court then proceeded to pronounce judgment in accordance with the plea bargain2 . Again it is clear from the reporter's transcript that petitioner fully understood the consequences of withdrawing the guilty plea and going to trial, and that her request was intelligently and knowingly made. She has petitioned this court for a writ of habeas corpus to review that action. We grant relief as hereinafter indicated3 .

Although it has been held that the matter of allowing the withdrawal of a guilty plea lies in the discretion of the trial court (People v. Nooner (1965) 237 Cal.App.2d 210, 215, 46 Cal.Rptr. 689), we are enjoined that withdrawals should be granted liberally (People v. Francis (1954) 42 Cal.2d 335, 338, 267 P.2d 8). As was said in People v. Clark (1968) 264 Cal.App.2d 44, 46–47, 70 Cal.Rptr. 324, 325: ‘The continued acceptance by the court of a guilty plea in the face of a defendant's suggestion that in fact he is not guilty runs contrary to all basic conceptions of justice under law. Whenever the superior court has reason to suspect that a defendant has pleaded guilty to a felony as a matter of expediency we think the court has inherent power to set aside the plea on its own initiative prior to the entry of judgment.’ (See, also: People v. McGarvy (1943) 61 Cal.App.2d 557, 564, 142 P.2d 92.)

We conclude that the trial court abused its discretion in denying the request to withdraw the guilty plea.

The judgment in superior court case No. A–282,807 is vacated. The Sheriff of Los Angeles County is directed to return petitioner to the superior court of that county for further proceedings consistent with this opinion.


1.  The reporter's transcript shows a plea to robbery in the first degree; the clerk's minutes show a plea to robbery in the second degree. Since the plea bargain involved a grant of probation and since the robbery as charged was one of the offenses for which probation is prohibited by section 1203 of the Penal Code, we conclude that the clerk's minutes accurately reflect the action taken.

2.  Actually the judgment pronounced was slightly more favorable to petitioner than the bargain had required. The bargain, as stated by the court when it was entered into, did not restrict the period of possible probation (other than as limited by law). The judgment as imposed terminated probation on the expiration of a six-month county jail term.

3.  The People argue that petitioner's proper remedy was by way of appeal and that she has not complied with the requirement of section 1237.5 of the Penal Code. It has been held that that section does not apply to an appeal limited to review of a denial of permission to withdraw a guilty plea (People v. Barteau (1970) 10 Cal.App.3d 483, 89 Cal.Rptr. 139). Normally, of course, habeas corpus will not lie where the remedy of appeal exists. But that rule is not absolute. Where, as here, there are important reasons for a speedy determination, the use of a prerogative writ is called for. If petitioner is to be tried for the alleged offense, the public interest requires that that trial not be unduly delayed. Accordingly we issued our order to show cause and issue a writ as indicated.

KINGLSEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.

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IN RE: Maxine BROWN on Habeas Corpus. (1972)

Docket No: Cr. 22019.

Decided: October 18, 1972

Court: Court of Appeal, Second District, Division 4, California.

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