People v. Superior Court

Opinion

The People of the State of California petition this court for writ of mandate and/or prohibition directed to respondent municipal and superior courts to require that they proceed as required by law upon a nolo contendere plea as originally entered by William Barke, real party in interest.

The case having been returned to the municipal court, defendant and his counsel appeared again before that court on June 2, 1976. Defendant moved to withdraw his plea and to compel a psychiatric examination of the girl. In support of the motion, counsel related what had occurred in superior court. Neither the defendant nor his counsel asserted his innocence. No sworn testimony was offered. When the municipal court ascertained that the reason for the superior court rejecting the plea and returning the case to the municipal court was essentially that the superior court believed that either the girl or the father was lying (based on probation and psychiatrists’ reports), the municipal court denied both motions, refused to set a preliminary hearing and recertified the case to the superior court on the original nolo contendere plea. This was not an abuse of discretion, since no showing of “good cause” to withdraw the plea was made before the municipal court. (See Pen. Code, § 1018 and discussion thereof, infra.)

Defendant Barke again appeared before the. superior court on June 9 and June 15, 1976. During the June 9 proceedings the court stated that it was concerned that defendant was not guilty and “that his plea of no contest was entered to avoid publicity and embarrassment to his family, and so on, and that’s a pretty foolish reason for entering a plea of guilty when you can spend the rest of your life confined in the State Hospital.” The prosecutor pointed out that the plea was accepted and entered only after the municipal court inquired of defendant in the usual manner if the plea was entered for no other reason than that he was guilty and defendant had answered in the affirmative. The superior court replied that it was bound by no plea bargain and at that point took the position it was rejecting the plea bargain and would not accept the agreement of no prison sentence which was part of the plea bargain. However, by

The courts have consistently held that to permit a withdrawal of a plea under Penal Code section 1018 there must be a strong showing by defendant of good cause by “clear and convincing evidence” of a proper ground. (See, e.g., People v. Griffin (1950) 100 Cal.App.2d 546 , 548 [ 224 P.2d 47 ].) An attempt to set aside a plea without such evidence under section 1018 is an abuse of discretion. (People v. Caruso (1959) 174 Cal.App.2d 624 , 634 [ 345 P.2d 282 ]; In re Brown (1973) 9 Cal.3d 679 , 685 [ 108 Cal.Rptr. 801 , 511 P.2d 1153 ].) From our foregoing recitation of the circumstances under which the superior court refused to proceed under the plea, there was no clear and convincing evidence for refusal so to proceed. In fact, there was no evidence at all. There was only the defendant’s hearsay assertion to the probation officer and the psychiatrists that he had not committed any sex acts with his daughter.

There remains to be considered the question of whether or not the superior court acted-lawfully and properly within its discretion under its “inherent” power to prevent abuse of its process to prevent injustice. In People v. Clark (1968) 264 Cal.App.2d 44 [ 70 Cal.Rptr. 324 ], where a superior court refused to accept a guilty plea to felony in a municipal court, the refusal was upheld on. grounds that “[e]very court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process,” and also that the superior court acted in “substantial compliance with section 1018 of the Penal Code.” (Id., at pp. 46-47.) In Clark, supra, defendants were charged with attempted grand theft and forgery. At the municipal court arraignment the district attorney offered to accept a guilty plea to forgery and dismiss the other charges. Defendants, after ful! inquiry by the judge, were allowed to change their pleas to guilty of forgeiy, and the magistrate dismissed the remaining counts and certified the case to the superior court for probation hearing and sentence. The superior court judge, concerned about statements in the probation reports, asked defendants whether they had intended to cheat anybody, and they answered that they had

In contrast with the Clark case is the later case of People v. Thompson (1970) 10 Cal.App.3d 129 [ 88 Cal.Rptr. 753 ], In Thompson, defendant pleaded guilty to one count of a three-count information charging separate acts of grand theft (automobile). At the hearing to determine the sentence and disposition of the remaining counts, the trial judge said that, “ ‘. . . as far as I’m concerned—I will use the vernacular—it smells. This is what I call a typical case of—I’m just stating my opinion—this is a typical case of what I call the unholy condonation of “legalized” receivers of stolen property. . . .’” {Id., at p. 133.) The judge then set aside the guilty plea on his own motion, and the People sought relief by direct appeal and by petition for mandamus. Mandamus was granted to annul the order setting aside the guilty plea. The appellate court distinguished the Clark case in a significant way by emphasizing that in Clark the superior court’s refusal to accept the guilty pleas was in response to the implicit request of defendants whereas in Thompson the superior court acted “strictly on its own” based on a statement in the probation report that the. defendant felt he was “framed” and that deep down in his heart he was innocent. (Id., at p. 134.)

We hold that the superior court abused its discretion in refusing, on grounds of innocence, to accept the nolo contendere plea entered

What was said in People v. Thompson, supra, 10 Cal.App.3d at page 137, in equally applicable here. “The case is one of importance to the entire judicial scheme wherein courts receive guilty pleas from defendants. A court does not have unlimited power to either refuse to accept, or to vacate, a guilty plea. Issuance of mandate in this case will not require further trial nor retrial as to . .. the [charge]. Certainly it will not violate any known policy consideration nor will it provide harassment to the defendant.” (Cf. People v. Superior Court (Levy) 18 Cal.3d 248 [ 133 Cal.Rptr. 624 , 555 P.2d 633 ].)

Let a peremptory writ of mandate issue commanding the municipal court (a) to annul its order granting defendant’s motion to withdraw his nolo contendere plea; (b) to reinstate the negotiated nolo contendere plea with its concomitant plea bargain; (c) to-vacate the setting of a preliminary hearing; and (d) subject to defendant’s right to make an appropriate motion to withdraw his plea if he so desires, to certify this case to the superior court for proceedings on the nolo contendere plea. Let such writ also direct the superior court to proceed upon the nolo contendere plea of defendant pursuant to law and in light of this decision.

Puglia, P. J., and Reynoso, J., concurred.