People v. Chapman, Cr. 2728

• Citation: 234 P.2d 716,106 Cal.App.2d 51
• Decision Date: 14 August 1951
• Docket Number: Cr. 2728
• Court: California Court of Appeals
• Parties: PEOPLE v. CHAPMAN.

Page 716

234 P.2d 716

106 Cal.App.2d 51

PEOPLE v. CHAPMAN.

Cr. 2728.

District Court of Appeal, First District, Division 1, California.

Aug. 14, 1951.

Brent M. Abel, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

By this petition for a writ of error coram nobis, Chapman seeks to set aside his conviction, in 1932, of burglary, on the main ground that his plea of guilty to that offense was induced by the threats and coercion of certain named police officers. The petition was denied by the trial court and Chapman appeals.

Appellant was arrested in Santa Clara County on a charge of burglary on January 20, 1932. He was not arraigned until January 27, 1932, at which time he was, according to the record, 'informed of his rights.' The preliminary examination was had on February 1, 1932, at which time he was held to answer. He was then represented by attorney E. R. Girvin. On February 5, 1932, appellant, still represented by Girvin, was arraigned, reading of the information was waived, and a copy was presented to appellant. He, thereupon, pleaded guilty to the offense charged and applied for probation. At the probation hearing (February 11, 1932) Girvin again represented appellant, two witnesses for appellant were heard, and the degree of the crime was fixed at second degree. Sentence was suspended for two years, and appellant was released on probation on condition that he serve four months in the county jail. On October 7, 1932, a hearing was held on a charge that appellant had violated the terms of his probation. Girvin again represented appellant. After a hearing, the court found that appellant had violated the terms of his probation, and probation was revoked. Appellant then stated that he had no legal cause to show why judgment should not be pronounced. In one place in the record it shows that, in open court, appellant was asked why he committed the crime, to which he responded: 'I have no idea why I did these things. What I know is that I never benefited; it was more from foolishness.' Thus, in addition to his plea of guilty, he then admitted, in open court, that he had committed the offense charged. At the conclusion of the hearing, he was ordered imprisoned in the state prison for second degree burglary. He served his term, and was discharged on June 11, 1936.

In 1948 appellant was convicted of robbery and assault and of two charges of first degree burglary, and is now serving two consecutive terms of these convictions in Folsom. By reason of the 1932 conviction, his two present terms have been increased an additional five years each.

On September 14, 1950, appellant filed this petition for a writ of error coram nobis. The accompanying affidavit avers that when appellant was arrested in 1932 he was but 20 years of age, uneducated and unversed in criminal procedure; that he was, in fact, innocent of the charged offense in that the stolen property found in his possession had been purchased by him; that after his arrest he was beaten by Black, the chief of police, and by police officer Guerin; that because of these beatings and other forms of duress, including a threat to shoot him, he pleaded guilty. He also avers that, although he was represented by Girvin in the 1932 proceedings, Girvin was then, in fact, a narcotic addict and did not advise him of his constitutional rights.

The record shows that Black and Guerin are now dead, as are the trial judge and court reporter. Girvin filed an affidavit in which he denies that he ever was a narcotic addict, and in which he avers that he acted as appellant's attorney without compensation, and informed appellant of all of his constitutional rights, including his right to a jury trial.

In a supplemental affidavit appellant admits that he first became aware of his legal right to vacate the 1932 judgment of conviction after he had served his sentence on that charge, which would mean that he has had such knowledge since 1936. He avers that he did not then raise the point because, having served his full sentence, that conviction was not detrimental to him, and did not become detrimental to him until after his subsequent conviction, at which time the prior conviction aggravated the sentence on the subsequent convictions.

In the trial court some point was made of the charges contained in appellant's affidavit that Girvin did not properly represent him. Obviously, Girvin's affidavit created a conflict with those of appellant. That conflict was resolved against appellant by the trial court. Not only does Girvin aver that he informed appellant of all of his constitutional rights, including the right to a jury trial, but the record recites that appellant was informed of his rights. This conflict in the affidavits precludes this court from reweighing the evidence. See cases collected 1 Cal.Jur. p. 680, § 23.

Appellant makes some point of the fact that the record shows that after his arrest he was not brought before a magistrate for one week which, of course, was a violation of the law. This, however, was an error of law. It should have been raised on a motion for a new trial or on an appeal, and cannot be corrected on a petition for a writ of error coram nobis. People v. Martinez, 88 Cal.App.2d 767, 199 P.2d 375; People v. Coyle, 88 Cal.App.2d 967, 200 P.2d 546.

The only other point necessary to discuss is whether appellant should now be permitted to withdraw his guilty plea to the 1932 charge because of the averments in his affidavits, uncontradicted because the officers are dead, that such plea was induced by threats and duress.

It needs no citation of authority to support the proposition that to compel a plea of guilty by threats, fraud or coercion is a denial of due process, and, in a proper case, if found to exist, would warrant the issuance of the writ of error coram nobis. But to be entitled to the writ, the application must be filed with due diligence. The following are a few typical cases where it was held that the application was not filed with due diligence:--People v. Martinez, 88 Cal.App.2d 767, 199 P.2d 375, where the period involved was 8 years; People v. Lumbley, 8 Cal.2d 752, 68 P.2d 354, where the period was...