31 Cal. App. Supp. 3d 1 | Cal. App. Dep’t Super. Ct. | 1973
Opinion
In reading the statement of legal rights to defendants awaiting arraignment on traffic violations, the trial court advised them in part,as follows: “A plea of no contest means basically that you submit the matter to me now on the face of the ticket. I will decide the case right here after reading the ticket and hearing a very brief explanation from you, or perhaps asking a question or two. The advantage of a no contest plea is
The first statement hereinabove quoted incorrectly states the consequences of a plea of nolo contendere. It fails to advise defendant that “The legal effect of such plea shall be the same as that of a plea of guilty,”
Such is not the effect of this plea. While some jurisdictions allow consideration of a nolo plea, and possibly defendant’s statements in connection therewith, in mitigation of punishment, others do not recognize even this limited purpose. In no case is it proper to use such a plea as a vehicle for allowing proof of innocence. (Nolo Contendere—Its Use and Effect (1964) 52 Cal.L.Rev. 408.)
The settled statement is unclear as to whether defendant attempted to withdraw his plea. Ordinarily such a motion to change a plea would be requisite to a successful appeal. Not so here, for any such motion was discouraged by the court’s admonition that the plea once made could not be withdrawn. While it would have been appropriate to warn that such a plea could not be withdrawn without' a proper showing, to declare in advance that it can never be withdrawn precludes the trial judge from exercising his proper discretion on a motion to withdraw the plea. Even a guilty plea may be set aside on a proper showing. (Pen. Code, § 1018; Witkin, Cal. Criminal Procedure (1963) § 259.) Refusal of such a request by one who maintains his innocence may be an abuse of discretion.
The judgment is reversed with instructions to the trial court to allow
Zack, J., and Holmes, J., concurred.
Penal Code section 1016, subdivision 3.
Christensen v. Orr (1969 ) 275 Cal.App.2d 12 [79 Cal.Rptr. 656].