People v. Esparza

• Decision Date: 08 August 1967
• Docket Number: Cr. 355
• Citation: 253 Cal.App.2d 362,61 Cal.Rptr. 167
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward John ESPARZA, Defendant and Appellant.

Page 167

61 Cal.Rptr. 167

253 Cal.App.2d 362

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward John ESPARZA, Defendant and Appellant.

Cr. 355.

Court of Appeal, Fifth District, California.

Aug. 8, 1967.

[253 Cal.App.2d 363] Edward John Esparza, in pro. per.

Thomas C. Lynch, Atty. Gen., and Raymond M. Momboisse and John F. Biehl, Jr., Deputy Attys. Gen., Sacramento, for respondent.

OPINION

GARGANO, Associate Justice.

According to the record which we have carefully reviewed, appellant, who was represented by counsel, pleaded guilty on July 19, 1962, to assault with a deadly weapon in violation of Penal Code, section 245. Thereafter, appellant applied for probation and on August 6, 1962, he appeared in court with his counsel for the probation hearing. At the conclusion of the hearing the court suspended imposition of sentence and placed appellant on probation for a period of three years, subject to the usual conditions, and subject to the further condition that he serve the first ten months of his probationary period in the county jail. On or about February 27, 1964 (while appellant was still on probation) appellant's probation was revoked and he was sentenced to the state prison for the term prescribed by law, for the crime to which he had pleaded guilty in 1962. On December 6, 1966, defendant petitioned the Superior Court of Fresno County for a writ of error coram nobis, alleging the following grounds for relief:

'(a) 'Excessive punishment' in a cruel an (sic) unusual manner.

(b) Equal protection of/the law. Illegal resentencing.

(c) Denial of due process of law. Double-Jeopardy.'

Appellant's petition was denied by the respondent court and appellant has appealed.

We agree with respondent's contention that no relief is available under a writ of coram nobis where the alleged error is one of law rather than fact (People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102). In fact, the scope of a writ of coram nobis is delineated in People v. Shipman 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 3, 397 P.2d 993, 995, as follows:

'The writ of Coram nobis is granted only when three requirements are met. (1) Petitioner must 'show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.' (Citing cases.) (2) Petitioner must also show that the 'newly discovered evidence * * * (does not go) to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' (Citing cases.) This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (Citing cases.) (3) 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 by him at any time substantially earlier than the time of his motion for the writ * * *.' (Citing cases.)'

Hence, it is manifest that appellant's petition for a writ of error coram nobis fails to meet the requirement of Shipman and was properly denied by the respondent court.

Furthermore, we do not even find it necessary to determine whether the respondent court should have treated appellant's petition as a petition for a writ of habeas corpus. This is so because the main thrust of appellant's argument is the erroneous assertion that he was twice sentenced for the same crime, i.e., the first time by misdemeanor sentence (the ten months'...