People v. Gatewood

• Decision Date: 15 July 1960
• Docket Number: Cr. 6865
• Citation: 182 Cal.App.2d 724,6 Cal.Rptr. 447
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee GATEWOOD, Defendant and Appellant.

Page 447

6 Cal.Rptr. 447

182 Cal.App.2d 724

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee GATEWOOD, Defendant and Appellant.

Cr. 6865.

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

July 15, 1960.

Rehearing Denied Aug. 3, 1960.

Hearing Denied Sept. 7, 1960.

Robert Lee Gatewood, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant, in propria persona, appeals from order denying his petition for a writ of error coram nobis.

On October 14, 1958, defendant was sentenced to the State Prison for the term prescribed by law, following a trial in which he was found guilty of burglary of the second degree. Four prior felony convictions were found to be true. No motion for a new trial was made, nor was an appeal taken from the judgment. Thereafter and on or about May 21, 1959, defendant filed a 'Petition for Writ of Error Coram Nobis and/or Motion to Null, Vacate and Set Aside Judgment.' No evidence was presented and the matter was disposed of on the petition, to which was attached defendant's 'Arguments and Authorities.' The petition was denied on May 28, 1959.

Defendant was charged with the burglary of a telephone booth of the Pacific Telephone and Telegraph Company. After defendant had testified and rested his case, the court recalled prosecution witness, orvil D. Jones, for further testimony. Defendant asserts that the witness, a police agent for the telephone company, told the court and demonstrated how the burglary could have been perpetrated; i. e., 'that by snatching and pulling on the placard holder a person could tear the upper-housing cover off and then by use of a screw driver such as found in petitioner's possession could obtain easy access to the money.'

The petition alleges these points as grounds for the issuance of the writ: (1) That the testimony of witness Jones was fraudulent and misleading in that it was impossible and improbable that entrance could be obtained in the manner described; that the witness knowingly concealed from the court the true facts as to the construction of a pay telephone. (2) That during the taking of Jones' testimony he, defendant, 'tried to no avail, to get his appointed counsel to ask the necessary questions that would have shown the falsity of Mr. Jones' statements', and that the court and appointed counsel 'deprived' him of the right to take the witness stand in an attempt to rebut such testimony. (3) That defendant failed to take an appeal because the court 'implied' and counsel 'told him' that it would be necessary for him to hire an attorney to initiate an appeal.

In discussing the function of a writ of error coram nobis, this court stated, in People v. Hayman, 145 Cal.App.2d 620, 623, 302 P.2d 810, 812: '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.] * * * It is not properly used to correct errors of law or to redress irregularities at the trial that could have been corrected on motion for new trial or by appeal. [Citation.] On the contrary, it is a process whose scope is extremely narrow and must be confined to an inquiry into those facts which might have been properly defensive matter at the trial but for the interposition of some agency other than the negligence of the petitioner. [Citation.]'

'It is well settled that the writ may not be used to cure irregularities occurring at the trial except in such circumstances of extrinsic fraud which actually deprived the petitioner of a trial on the merits. [Citations.]' People v. Egan, 73 Cal.App.2d 894, 899, 167 P.2d 766, 769.

The averments in the petition are clearly insufficient to spell extrinsic fraud. See, People v. Mooney, 178 Cal. 525, 527-528, 174 P. 325; In re Manchester, 33 Cal.2d 740, 742, 204 P.2d 881; People v. Darcy, 79 Cal.App.2d 683, 689, 180 P.2d 752. The court states, in the Mooney case, 178 Cal. at page 530, 174 P. at page 327: "In this state it is the settled law that a judgment cannot be set aside because it is predicated upon perjured testimony, or because material evidence is concealed or suppressed. The fraud which is practiced in such cases upon both the court and him against whom the judgment is pronounced is not such fraud as is extrinsic to the record; and it is only in cases of extrinsic fraud that such relief may be had. [Citations.]" People v. Carpenter, 162 Cal.App.2d 182, 183, 328 P.2d 482: 'The knowing use by officers of perjured testimony to secure a conviction entitles the defendant to a new trial. [Citations.] An essential element stated in all of the cited cases is that the officers knowingly used the perjured testimony.' There is no allegation, much less proof, that the prosecution knowingly used or procured the alleged 'fraudulent' testimony.

In his argument, defendant also claims that at the time witness Jones testified, he had full knowledge 'of the results of a scientific investigation of the booth and pay phone in question, made by the Los Angeles Police Dept. and/or the Pacific Telephone and Telegraph Company's investigative details, which definitely stated that there was no evidence of burglary or attempted...