People v. Ingles
| Citation | 218 P.2d 987,97 Cal.App.2d 867 |
| Decision Date | 05 June 1950 |
| Docket Number | Cr. 2641 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. INGLES. |
Wm. F. Cleary, San Francisco, for petitioner.
Fred N. Howser, Atty. Gen., Clarence A. Linn, Deputy, Alfred Del Carlo, Asst. Dist. Atty., San Francisco, for respondent.
Appellant pleaded guilty to an information charging him with violation of section 476a of the Penal Code, a felony. After sentence to San Quentin thereon, and after the judgment of conviction became final, he petitioned the superior court for a writ of error coram nobis. From a denial of his petition he appealed.
Question Presented.
The main question presented is whether coram nobis will lie where a defendant pleads guilty to a crime charged in an information, which crime is a different one than that set forth in the complaint which initiated the proceeding in the committing magistrate's court.
Facts.
The facts are undisputed. On March 12, 1949, the prosecution of appellant was commenced with the filing in the municipal court of a complaint charging him with a violation of section 476 of the Penal Code, setting forth in substance that, with intent to defraud 'De Ferrari & Peters,' he feloniously made, passed, uttered and published a certain fictitious check, which was in words and figures as follows:
'Factory Payroll Check
The National Company
Check
PAY Twenty Seven
To the Order of
G. Grant Ingles
302-1503186 OD
46-02 N. W. Baker
Any Bank or Trust Co.
Anywhere (signed) L. R. Prentez' and said check was indorsed by said G. Grant Ingles in words and figures as follows:
'G. Grant Ingles
'2001 California St., San Franciso'; that there was no such firm as The National Company, which appellant well knew, and that appellant well knew that the check was fictitious.
Appellant waived a preliminary examination and the judge of the municipal court, on March 16, 1949, held the petitioner to answer 'for the offense of 'Felony to-wit, 476-A Penal Code'.' (Emphasis added.) Thereafter and on March 25, the district attorney filed an information in the superior court charging appellant with violation of 476a, Penal Code. The information did not set forth a copy of the check, but in substance charged that appellant, with intent to cheat 'De Ferrari & Peters and Bank of America, N. T. & S. A., a corporation,' feloniously made, drew, uttered, and delivered to De Ferrari & Peters a check and draft for the payment of $27.38, drawn upon a bank, 'to wit, Bank of America,' knowing at the time that he had not sufficient funds in, or credit with said bank to meet the check and draft upon its presentation for payment.
It will be noted that the charge of violating section 476a of [97 Cal.App.2d 869] the Penal Code, that is, uttering a check on a bank without sufficient funds, is an entirely different crime than that charged in the complaint, namely, violating section 476, that is, uttering a fictitious check. The information also charged appellant with a prior conviction and incarceration.
On March 29 appellant was arraigned. The record shows that he was present with an assistant public defender who was appearing for appellant's attorney, Eyman. The reading of the information was waived. At the request of the attorney the time to plead was continued to April 5. On that day appellant was present without his attorney, who was engaged elsewhere. The district attorney stated that Mr. Eyman had requested that the matter be continued to April 8. This was done. On that day appellant was present with his counsel and pleaded 'guilty of the offense charged,' but denied the prior. Appellant waived time for pronouncement of sentence and then made a motion for probation. On May 9, appellant being present without counsel, the hearing of the probation report was continued to May 10.
On that day Attorney Eyman informed the court that appellant and his mother desired to substitute Attorney Sullivan, and that the latter desired the matter continued to the 12th. The court thereupon stated that it saw no necessity for a continuance, that the record showed that appellant had been
The court made an order denying probation and then ordered the cause referred to the Youth Authority and continued the cause to May 24 'for report.' On that day, appellant appearing without counsel, the cause was continued to May 27. On that day, the court stated: The court thereupon sentenced appellant to San Quentin. On June 9, in the absence of appellant, the district attorney moved for a dismissal of the prior conviction charged in the information. The motion was granted. As amended judgment of conviction under section 476a of the Penal Code and an amended sentence to San Quentin was then made by the court.
On August 22, appellant filed a petition for writ of error coram nobis on the grounds of the existence of facts which, had they been before the court, would have precluded the rendition of the judgment.
The Difference In Offenses.
Unquestionably the crime for which appellant was held to answer and which was charged in the information, is entirely different from that charged in the complaint. To determine whether such fact justifies the relief of coram nobis it is necessary to consider the scope of the latter writ.
Appellant quotes the following language from 31 Am.Jur. 323: 'A writ of coram nobis or coram vobis, where available, is used to obtain a review of a judgment where it appears that certain mistakes of fact have occurred which were not put in issue, were unknown to the court, and were not passed upon by it'; and relies principally upon that quotation and similar language taken from People v. Reid, 195 Cal. 249, 259, 232 P. 457, 36 A.L.R. 1435. However, such language gives only a part of the test. The other part is set forth in 31 Am.Jur. 325 as follows: 'It is essential to the availability of the remedy of coram nobis or coram vobis that the mistake of fact relied upon for relief was unknown to the applicant at the time of the trial, and could not by the exercise of reasonable diligence have been discovered by him in time to have been presented to the court, unless he was prevented from so doing by duress, fear, or other sufficient cause, so that it was by no negligence or other fault of his that the matter was not made to appear at the former trial.' It is not merely that a judgment is made upon the assumed existence of a fact or condition which did not in truth exist, and the nonexistence of which, if it had been known, would have precluded the rendition of the judgment, which justifies the issuance of the writ of coram nobis, but there is one additional requisite, namely, the existence of that fact must not have been known, and could not have been known to the appellant by the exercise of reasonable diligence. People v. Shorts, 32 Cal.2d 502 at page 506, 197 P.2d 330, contains an exhaustive discussion of the principles of the 'extraordinary remedy' of coram nobis as applied in this state. It is there said in 32 Cal.2d at page 513, 197 P.2d at page 336: 'One who applies for a writ of coram nobis upon a ground such as the one here presented 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.' As said in People v. Adamson, 34 Cal.2d 320, 326, 210 P.2d 13, 15, coram nobis is a remedy of See also People v. Thompson, 94 Cal.App.2d 578, 211 P.2d 1.
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