233 P. 390 | Cal. Ct. App. | 1924
This matter comes before us upon an application for a writ ofhabeas corpus. Petitioner contends that his confinement in the state prison at San Quentin, California, is illegal because the judgment of conviction of the crime of burglary, by reason of which he is being *335 restrained of his liberty, was based upon a plea of guilty and that no such plea was ever entered by said petitioner.
[1] From the transcript of the proceedings in the trial court, it clearly appears that the petitioner did not plead guilty, but that his attorney stated to the court: "I believe the information has been read; if not, we will waive the reading of the information and enter a plea of guilty and make application for probation."
We think this was not a proper plea in the face of the statute, which specifically provides that a plea of guilty can be put in by the defendant himself only in open court. Sec.
[2] Respondent takes the position that the foregoing decision is inapplicable here because of the subsequent enactment of section 4 1/2 of article VI of our constitution, which section respondent contends covers the omission in the instant case. We do not agree with this position. The record before us contains no evidence whatsoever upon the question of the guilt of petitioner, and it is impossible, therefore, to say that substantial justice has been meted out to the defendant. Section 4 1/2 of article VI of the constitution could not be applied in the instant case even though we considered the error a procedural one, because of the absence of any record upon which we might judge of the guilt or innocence of the petitioner. In this respect, the instant case differs from the cases of People v. McCalla,
[3] There being no plea, no valid judgment against the defendant could be entered. (People v. Corbett,
The petitioner is remanded to the custody of the sheriff of Ventura County for further proceedings.
Nourse, J., and Sturtevant, J., concurred.