People v. Dowding

• Citation: 185 Cal.App.2d 274,8 Cal.Rptr. 208
• Decision Date: 14 October 1960
• Docket Number: Cr. 3798
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford M. DOWDING, Defendant and Appellant,
• Court: California Court of Appeals

Page 208

8 Cal.Rptr. 208

185 Cal.App.2d 274

PEOPLE of the State of California, Plaintiff and Respondent, v. Clifford M. DOWDING, Defendant and Appellant,

Cr. 3798.

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

Oct. 14, 1960.

James R. Mansfield, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Edward P. O'Brien, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Appellant pursues an erroneous procedure when he attempts to set aside that portion of a judgment adjudicating him an habitual criminal by means of a writ in the nature of coram nobis. Whatever substance there may be to appellant's basic position, he can properly present it solely by application for a writ of habeas corpus.

The case arises from appellant's appeal from the denial of a motion to annul, vacate, and set aside that portion of a judgment of October 27, 1930, adjudicating him as an habitual criminal. Appellant was tried and convicted upon the charged of robbery in the first degree and burglary in the first degree. The trial court having found that appellant had been previously tried and convicted of grand larceny by the Fresno County Superior Court on February 9, 1919, burglary in the second degree by the King County Superior Court of the State of Washington on November 21, 1922, and attempted robbery by the San Francisco Superior Court on January 28, 1924, it adjudged him an habitual criminal under section 644 of the Penal Code and ordered that he be confined in the state prison for not less than his natural life. Appellant contends that neither the conviction for second degree burglary suffered in Washington nor that in California for attempted robbery are within the purview of section 644 of the Penal Code as it existed either prior, or subsequent, to his adjudication as an habitual criminal.

Appellant's motion in substance comprises a petition for a writ of coram nobis. '[A]n attack on a judgment by motion to vacate it is in legal effect a proceeding for a writ of error coram nobis, whether it be called by that name or not.' People v. Mason, 1958, 163 Cal.App.2d 630, 632, 329 P.2d 614, 615; People v. McCoy, 1953, 115 Cal.App.2d 565, 567, 252 P.2d 371. Moreover, appellant in his notice of appeal characterizes the motion as one 'to annul, vacate, and set aside the judgment (Error Corum Nobis) * * *.'

As we shall point out, the limited nature of coram nobis restricts its attempted present application; and, even if we were to treat the motion in substance as a petition for a writ of habeas corpus, which would be the proper remedy here, we are prevented from giving relief because of the absence of jurisdictional requirements.

The function, as well as the extent, of coram nobis has been described in People v. Adamson, 1949, 34 Cal.2d 320, 210 P.2d 13: 'Its purpose is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court. * * * The applicant for the writ '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 by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.' (People v. Shorts (1948), 32 Cal.2d 502, 513, 197 P.2d 330, 336.)' 34 Cal.2d at pages 326-327, 210 P.2d at page 15. See also, People v. Gilbert, 1944, 25 Cal.2d 422, 442, 154 P.2d 657; People v. Lempia, 1956, 144 Cal.App.2d 393, 397, 301 P.2d 40. Indeed, the court in In re Seeley, 1946, 29 Cal.2d 294, 176 P.2d 24, specifically declared the writ inapplicable to an attack upon an excessive sentence: 'The courts have refused to recognize the remedy by writ of error coram nobis as appropriate for an inquiry into an asserted imposition of an excessive sentence.' 29 Cal.2d at page 298, 176 P.2d at page 27.

Appellant here fails to show that, at the time of the original trial and judgment, the facts upon which he relies were not known to him, or could not, with due diligence, have been discovered by him. The writ, then, does not constitute the appropriate remedy.

Nor can we convert this proceeding into one for habeas corpus and thereby afford any merited relief. While 'habeas corpus is the proper proceeding to test the question whether the petitioner was serving an excessive sentence by virtue of an unauthorized adjudication that he was an habitual criminal.' (In re Seeley, supra, 29 Cal.2d 294, 298, 176 P.2d 24, 27), the instant matter lacks the jurisdictional bases which would empower this court to act.

In the first place, a decision of the...