Spears

In this case we consider the right of two defendants to withdraw guilty pleas taken under conditions suggesting to them probation was “likely.” In fact, the nature of the offense was such that probation was a disfavored option (the “unusual case” category), and they were not so advised when their pleas were taken.

On January 19, 1982, an information filed in the Tulare County Superior Court charged defendants with numerous violations of the Penal Code: section 209 (kidnaping); section 459 (burglary); section 211 (armed robbery); section 245 (assault with a deadly weapon); section 182 (conspiracy); and section 136Vi (dissuading a witness from attending by bribe). Added were special allegations of section 12022, subdivision (b) (use of a deadly and dangerous weapon), section 12022.5 and section 1203.06, subdivision (a) (1) (personal use of a firearm), and section 12022, subdivision (a) (armed with a firearm). Later, pursuant to section 995 motions, the section 136Vi- and section 182 counts, along with their special allegation, were dismissed.

On April 5, 1982, the day of trial, there were off-record discussions concerning a plea bargain. When the pleas were taken no one…