Nunez, In re

Decision Date15 January 1965
Docket NumberCr. 8325
Citation397 P.2d 998,62 Cal.2d 234,42 Cal.Rptr. 6
Parties, 397 P.2d 998 In re Joe NUNEZ on Habeas Corpus.
CourtCalifornia Supreme Court

Joe Nunez, in pro. per., and Paul Ackerman, Santa Ana, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner was charged by information with unlawful possession of narcotics (Health & Saf.Code, § 11500) and with a prior conviction for the same offense. On February 19, 1962, represented by retained counsel, he withdrew a plea of not guilty and pleaded guilty to the charge. On May 3, 1962, he again appeared with counsel and the court entered a judgment of conviction, found the prior conviction true, and sentenced him to prison. He did not appeal.

After an unexplained delay of 19 months, petitioner, confined at San Quentin, mailed a motion to withdraw the guilty plea to the trial court in Los Angeles. The court treated this motion as a petition for a writ of error coram nobis. Petitioner alleged that he was denied the effective aid of counsel in that counsel induced him to abandon a defense that incriminating evidence had been produced by an illegal search, and to enter a guilty plea, with the understanding that petitioner would be committed to the narcotics addict rehabilitation program. (Pen.Code, § 6451.) Petitioner requested that counsel be appointed at the coram nobis hearing. The trial court refused to appoint counsel to represent him, held a hearing at which his former lawyer testified, and denied the petition. Petitioner did not appeal.

On October 26, 1964, he filed this petition for a writ of habeas corpus alleging that the judge who convicted him failed to consider his suitability for the narcotics rehabilitation program, and that he was improperly denied counsel at the coram nobis hearing. We issued an order to show cause.

Petitioner's contention that the judge who convicted him failed to exercise his discretion under section 6451 of the Penal Code could have been raised on direct appeal from the judgment of conviction. Whether or not habeas corpus will lie in such a situation, the record clearly demonstrates that the contention is without merit. The probation report set forth petitioner's criminal record in some detail. At the probation hearing, the trial judge stated that he had read the report and determined that petitioner was not suitable for the program. (Cf. People v. Wallace, 59 Cal.2d 548, 553, 30 Cal.Rptr. 449, 381 P.2d 185.)

Petitioner's contention that he was improperly denied counsel at the coram nobis hearing is governed by the rules set forth in People v. Shipman, Cal., 42 Cal.Rptr. 1. In the absence of an allegation of state involvement, petitioner's allegation that counsel improperly induced him to enter a guilty plea does not state a ground for coram nobis relief. (See In re Atchley, 48 Cal.2d 408, 418, 310 P.2d 15; People v. Gilbert, 25 Cal.2d 422, 443, 154 P.2d 657; In re Hough, 24 Cal.2d 522, 533, 150 P.2d 448; People v. Ynostroza, 105...

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38 cases
  • People v. Williams
    • United States
    • California Court of Appeals Court of Appeals
    • June 28, 1965
    ...convicted and exercised its discretion, it will not be disturbed in the absence of a showing of abuse thereof. (In re Nunez (1965) 62 A.C. 240, 242, 42 Cal.Rptr. 6, 397 P.2d 998.) There being no reversible error, the judgment is accordingly SULLIVAN, P. J., and MOLINARI, J., concur. 1 The n......
  • People v. Perry
    • United States
    • California Court of Appeals Court of Appeals
    • March 26, 1969
    ...determination that the defendant is not a fit subject for commitment to the program will not be set aside. (In re Nunez (1965) 62 Cal.2d 234, 235--236, 42 Cal.Rptr. 6, 397 P.2d 998; People v. Jolke, supra, 242 Cal.App.2d 132, 143, 51 Cal.Rptr. 171; People v. Williams (1965) 235 Cal.App.2d 3......
  • Gardella v. Field
    • United States
    • U.S. District Court — Central District of California
    • July 31, 1968
    ...Rptr. 716, 394 P.2d 556 (1964). (3) E. g., In Re Streeter, 66 Cal.2d 47, 56 Cal.Rptr. 824, 423 P.2d 976 (1967); In Re Nunez, 62 Cal.2d 234, 42 Cal.Rptr. 6, 397 P.2d 998 (1965). Also see note 17 19 In that case, the petitioner had bypassed both appropriate lower courts before petitioning the......
  • People v. Hyung Joon Kim
    • United States
    • California Supreme Court
    • March 16, 2009
    ...to plead guilty to render him eligible for diversion and the trial court eventually denied diversion (In re Nunez (1965) 62 Cal.2d 234, 236, 42 Cal.Rptr. 6, 397 P.2d 998); where the defendant pleaded guilty to having a prior felony conviction when he was eligible to have the prior reduced t......
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