People v. Cole, Cr. 5835

• Decision Date: 24 June 1957
• Docket Number: Cr. 5835
• Citation: 152 Cal.App.2d 71,312 P.2d 701
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Claude COLE, Defendant and Appellant.

Page 701

312 P.2d 701

152 Cal.App.2d 71

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Claude COLE, Defendant and Appellant.

Cr. 5835.

District Court of Appeal, Second District, Division 2, California.

June 24, 1957.

James Claude Cole, in pro. per., for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant appeals from an order denying his application for a writ of error coram nobis.

Defendant was charged by information with violating section 11500 of the Health and Safety Code (possession of marijuana), and with three prior felonies. Although defendant was initially represented by private counsel, such counsel was 'relieved' and the Public Defender was appointed to represent the defendant.

On March 30, 1956, defendant entered a plea of guilty, admitted the second and third prior convictions, as alleged, but denied the first alleged prior, which was later stricken in the interest of justice. On April 20th probation was denied and defendant was sentenced to the state prison. No appeal was taken from the judgment.

In his application to vacate and set aside the judgment defendant makes two contentions: (1) that he was induced to enter a plea of guilty by reason of the advice of his counsel that 'he [the deputy public defender] had it fixed with the district attorney' that upon a plea of guilty, defendant would be granted probation, thus preventing the revocation of his parole; and (2) that the judgment was the direct result of arrest, search and seizure in violation of his constitutional rights. Neither of these grounds justifies a reversal.

The pertinent legal principles relative to the scope and function of the writ of error coram nobis were recently stated by this court in People v. Flores, 147 Cal.App.2d ----, 305 P.2d 90, 92: "The office of that writ is to bring the attention of the court to such facts as existed at the time of the trial that would have constituted a valid defense, but which, without negligence on the part of the defendant, were not presented, either through duress, fraud or excusable mistake and which, not appearing on the face of the record, would have effected an acquittal of the petitioner or, at least, have caused a more favorable judgment to be entered against him (citations).' There is a strong presumption that the judgment is correct. [Citations.] To prevail in a coram nobis proceeding a defendant has the burden of establishing by a preponderance of credible evidence that he was deprived of substantial legal rights by extrinsic causes. [Citations.] Also, the petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered at any time substantially earlier than the time of filing his petition. [Citation.] Finally, granting relief in such a proceeding rests largely in the sound discretion of the trial court and its decision will not be reversed except for an abuse of that discretion. [Citations.]' This court also pointed out in People v. Martorana, 118 Cal.App.2d 332, 334, 257 P.2d 998, 1000, that "Neither the trial court nor the appellate court is bound 'to accept at face value the allegations of the petition' for the writ."

Defendant's claim that the public defender told him that 'he had it fixed with the district attorney' that upon a plea of guilty defendant would receive probation, presents purely a factual question. In view of defendant's obvious interest in the matter and his prior felony convictions, the trial court was not required to accept as true his statement although it was not contradicted. People v. Flores, supra, 147 Cal.App.2d at page ----, 305 P.2d at page 92; People v. Bobeda, 143 Cal.App.2d 496, 500, 300 P.2d 97; People v. Curtis, 104 Cal.App.2d 219, 223, 230 P.2d 877. There was no corroboration of defendant's story that his attorney represented that he had made a deal with the district attorney whereby defen...