Opinion
Cr. 1412
4-16-1959
PEOPLE of the State of California, Plaintiff and Respondent, v. Richard BANKS, Defendant and Appellant. *
Edgar G. Langford and J. Perry Langford, San Diego, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Richard BANKS, Defendant and Appellant. *
April 16, 1959.
Hearing Granted June 9, 1959.
Edgar G. Langford and J. Perry Langford, San Diego, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.
MUSSELL, Justice.
Appellant was charged with the crime of Possession of Firearm Capable of Being Concealed Upon the Person of One Previously Convicted of a Felony (Pen.Code, sec. 12021). It was alleged in the complaint filed in the Municipal Court, San Diego Judicial District, that on May 29, 1958, defendant 'had in his possession and under his custody and control a firearm having a barrel less than twelve inches in length, to wit, a .38 caliber H & R revolver, serial No. 1728, he the said defendant, being then and there a person who had previously been convicted of a felony'; and 'that before the commission of the offense hereinabove set forth in this complaint, said defendant was on the 18th day of May, 1953, in the Superior Court of the State of California, in and for the County of Alameda, convicted of the crime of Unlawful Taking and Driving of a Vehicle (VC 503), a felony; that the judgment upon said conviction was pronounced, rendered, given, and made on the 18th day of May, 1953, that said judgment has never since been reversed, annulled, or set aside.'
Appellant entered a plea of guilty in the municipal court and admitted the prior conviction of a felony. He was certified to the superior court where proceedings were had in accordance with the provisions of Penal Code, section 859a. On August 13, 1958, appellant reiterated his plea of 'guilty', as theretofore entered, admitted the prior conviction of a felony alleged, and applied for probation. On September 3, 1958, his application for probation was denied and he was sentenced to the state prison for the term prescribed by law. On September 25, 1958, appellant filed a motion in the supperior court for an order setting aside the judgment of conviction herein and permitting him to withdraw his plea of guilty. The motion was denied and this appeal is taken from the order denying it.
The trial court found herein that 'said Superior Court of Alameda County granted Defendant three years probation with 12 months incarceration in county jail as a condition thereof; that said probation period expired without revocation; and that sentence to prison was not pronounced against Defendant at any time in said proceedings and that no proceedings under Section 1203.4, Penal Code were had therein.'
Appellant's sole contention here is that the order of the superior court of Alameda county, made on May 18, 1953, suspending the imposition of a sentence and granting defendant probation for a period of three years did not constitute a conviction of a felony sufficient to make him liable to prosecution under Penal Code, section 12021.
The offense with which appellant was charged and of which he was convicted on May 18, 1953, is punishable by imprisonment in the state prison, or in the county jail for not more than one year, or by a fine of not more than $5,000, or by both such fine and imprisonment. Vehicle Code, § 503.
Section 17 of the Penal Code provides: 'A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the state prison, unless the court commits the defendant to the California Youth Authority. Where a court commits a defendant to the California Youth Authority upon conviction of a crime punishable by imprisonment in the state prison or fine or imprisonment in a county jail, in the discretion of the court, the crime shall be deemed a felony until and unless the court, after the person committed has been discharged from control by the California Youth Authority, and only if he was not placed in a state prison by the authority during the period of such control, on application of the person so committed and discharged, makes an order determining that the crime of which he was convicted was a misdemeanor.'
In the instant case appellant pleaded guilty in the municipal court to the crime charged in the complaint and admitted the prior felony conviction alleged. On August 13, 1958, he appeared in the superior court with his attorney and reiterated his plea of guilty theretofore entered and admitted the prior conviction alleged. The plea of guilty herein entered on advice of counsel was an admission of every element of the offense charged and constituted a conclusive admission of appellant's guilt. People v. Cooper, 123 Cal.App.2d 353, 356, 266 P.2d 566; 14 Cal.Jur.2d, sec. 247, p. 492. In People v. Whitton, 112 Cal.App.2d 328, 333, 246 P.2d 60, it is said that a plea of guilty precludes any proceeding involving the taking of evidence because such a plea is a conclusive admission of appellant's guilt and of every element entering into the offense charged.
Appellant's application to withdraw his plea was not made until after his application for probation had been denied and the time for appeal from the judgment had expired. In People v. Cooper, supra, 123 Cal.App.2d 353, 356, 266 P.2d 566, 567, it is said: 'While a plea of guilty may by withdrawn pursuant to Penal Code section 1018 by reason of the mistake, ignorance, inadvertence or any factor that overcame the defendant's exercise of a free judgment, the basis of the motion for such relief 'must be established by clear and convincing evidence.' Moreover, the reviewing court is justified in concluding that the motion was properly denied when it is shown that the accused 'acted with knowledge of the facts and on advice of his counsel.' In any event, the granting of such a motion rests in the sound discretion of the court.'
In People v. Ward, 96 Cal.App.2d 629, 633, 216 P.2d 114, 117, the court said: 'If there is any difference between a petition for a writ of error coram nobis and a motion to vacate, it is that the former is broader than the latter. Under some circumstance a writ of error coram nobis can be granted although the judgment is regular on its face (People v. Butterfield, 37 Cal.App.2d 140, 99 P.2d 310), but a motion to vacate must be denied where, as here, the judgment is regular on its face. (Citations.) Moreover, just as the writ of error coram nobis cannot be used to review matters that could be passed upon on an appeal, a motion to vacate cannot be used to serve the purposes of an appeal. Where the question raised could have been raised by an appeal, after the time for appeal has expired, the trial court has no jurisdiction to grant such a motion. (Citations.)'
In People v. Lempia, 144 Cal.App.2d 393, 396-397, 301 P.2d 40, 42, it is said: 'Furthermore, appellant's contention that his plea of guilty should be set aside on the basis of mistake, ignorance, inadvertence and overreaching of his free will is unavailing because the record discloses that he was represented by counsel at all stages of the proceedings from arraignment to judgment.'
In People v. Moore, 9 Cal.App.2d 251, 49 P.2d 615, the defendant admitted four prior felony convictions, a judgment of conviction was entered on the primary charge and he was sentenced as an habitual criminal. Later, he found out that three of the prior convictions were not felonies in this state. He sought relief by coram nobis. The order of the superior court denying him such a writ was affirmed on appeal. It was held that this type of mistake cannot be cured by coram nobis as defendant had open to him certain statutory remedies. The court further held, 9 Cal.App.2d at page 255, 49 P.2d at page 617: 'We fail to see how the position of defendant in this proceeding is any different from that of a person who pleads guilty to a crime believing in fact that he was guilty of the same at the time of his plea, when, as a matter of law, the facts could not establish his guilt. In the latter situation a defendant would have the undoubted right to make a motion to change his plea. (Citations.) If, however, the defendant omits to do so, and the time has expired for the exercise of any of the statutory remedies after judgment, which might be invoked to cure the situation, and the judgment becomes final, there would be no further legal recourse by any form of judicial review. The same, we believe, is true in this case.' (See also People v. Ingles, 97, Cal.App.2d 867, 874, 218 P.2d 987.)
In support of his contention that his plea of guilty to a violation of section 503 of the Vehicle Code, the suspension of the proceedings, and the granting of probation was not a conviction of a 'felony' within the terms of section 12021 of the Penal Code, appellant relies upon In re Rosencrantz, 211 Cal. 749, 297 P. 15, 16. In that case petitioner contended that she was not convicted of a felony where she pleaded guilty to a violation of section 476a of the Penal Code and was granted probation for a period of two years. The court held that 'If petitioner had been sentenced to the state prison, she would have been convicted of a felony; and that had she been sentenced to the county jail, she would have been convicted of a misdemeanor'; that she was not sentenced nor was any judgment of conviction pronounced and that there was no conviction. However, in People v. Lippner, 219 Cal. 395, 404-405, 26 P.2d 457, 460, the court said: 'In this action the defendant, as we have seen, pleaded guilty to three charges which were punishable either by imprisonment in the state prison or in the county jail. In Doble v. Superior Court, 197 Cal. 556, 241 P. 852, it was held that under such a plea the defendant is guilty of a felony. On page 576 of the opinion in 197 Cal., 241 P. 852, 860 of that case this court said: 'A fair construction of section 17, in order to give effect to every part thereof, requires us to hold, and we do so hold, that in prosecutions within the contemplation of that section the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that event it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter.' Therefore, when the court suspended judgment and placed defendant on probation, it was on his plea to three separate and distinct felonies, each punishable by imprisonment in the state prison for the term of five years.'
In People v. Williams, 27 Cal.2d 220, 228, 229, 163 P.2d 692, 696, the court said: 'Burglary in the second degree is punishable by imprisonment in the state prison (Pen.Code, § 461) and is therefore a felony. Pen.Code, § 17. While it is also punishable, in the alternative, by a county jail sentence (Pen.Code, § 461), its status can be changed only by 'a judgment imposing a punishment other than imprisonment in the state prison.' Pen.Code, § 17; In re Miller, 218 Cal. 698, 700-701, 24 P.2d 766; In re Rogers, 20 Cal.App.2d 397, 400, 66 P.2d 1237. This principle is stated in no uncertain terms in the Rogers case as follows, 20 Cal.App.2d at page 400, 66 P.2d at page 1238: 'The necessary inference to be drawn from the language of section 17 of the Penal Code that 'when a crime, punishable * * * by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes, after a judgment imposing a punishment other than imprisonment in the state prison,' is that the offense remains a felony except when the discretion is actually exercised and the prisoner is punished only by a fine or imprisonment in a county jail.''
In People v. Graff, 144 Cal.App.2d 199, 206, 300 P.2d 837, 841 (hearing denied by Supreme Court), the court said: 'As violation of section 337a is punishable by imprisonment in the county jail or state prison, it is under Penal Code section 17, considered as a felony for every purpose up to the judgment and by a judgment other than imprisonment in the State prison it loses that character prospectively only, without retroactive effect. Doble v. Superior Court, 197 Cal. 556, 576, 241 P. 852; In re Miller, 218 Cal. 698, 700, 24 P.2d 766.'
In the instant case appellant entered a plea of guilty to the offense charged and twice admitted a prior felony conviction of a violation of section 503 of the Vehicle Code. The court in the Alameda county case had discretion to reduce the offense to a misdemeanor by imposing a misdemeanor sentence. However, this was not done and appellant's conviction of a violation of said section of the Vehicle Code constituted proof of his conviction of a felony. Macfarlane v. Department of Alcoholic Beverage Control, 51 Cal.2d 84, 330 P.2d 769.
The order denying appellant's motion is affirmed.
GRIFFIN, P. J., and SHEPARD, J., concur. --------------- * Opinion vacated 1 Cal.Rptr. 669, 348 P.2d 102.