People v. Kraus, Cr. 25440

CourtCalifornia Court of Appeals
Citation121 Cal.Rptr. 11,47 Cal.App.3d 568
Decision Date28 April 1975
Docket NumberCr. 25440
PartiesThe PEOPLE, Plaintiff and Respondent, v. Robert Stefan KRAUS, Defendant and Appellant.

Page 11

121 Cal.Rptr. 11
47 Cal.App.3d 568
The PEOPLE, Plaintiff and Respondent,
Robert Stefan KRAUS, Defendant and Appellant.
Cr. 25440.
Court of Appeal, Second District, Division 4, California.
April 28, 1975.

Page 12

[47 Cal.App.3d 570] Peter L. Knecht, Los Angeles, Berman & Glenn and Howard J. Berman, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

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FILES, Presiding Justice.

This is an appeal from an order of the superior court denying a defendant's motion to set aside a conviction based upon a plea of guilty to two counts of violating Penal Code section 288a.

By way of background to the discussion of the procedural issues, some mention of the defendant and his offenses is appropriate. Defendant was, at the time of the offenses, a financially successful businessman thirty years of age. His father was a psychiatrist practicing in Massachusetts. Defendant's own description of his offenses (and another uncharged occurrence) appears in a letter which he wrote to the probation officer who made the presentence investigation:

'Generally speaking, I would wait for an attractive young lady to come into the parking lot. If she parked in an area where I thought we could not be seen, I would disconnect the wire to the ignition on her automobile. When she returned to her car I would approach her, show her the gun and ask her to move over. Sometimes I would ask for money as a ruse, but I never took any money because I didn't need any. I would then frighten her into oral copulation.'

In order to explain what is before this court for review, it is necessary first to detail the procedural history of the case.

On October 9, 1973, an information was filed charging defendant with the following offenses: count I, assault with a deadly weapon (Pen.Code, § 245, subd. (a)), using a firearm within the meaning of Penal Code section 12022.5; count II, oral copulation (Pen.Code, § 288a) while armed within the meaning of Penal Code section 12022; count III, [47 Cal.App.3d 571] attempted robbery (Pen.Code, §§ 664, 211) using a firearm; count IV, attempted robbery using a firearm; and count V, oral copulation armed with a pistol.

On October 30 defendant pleaded guilty to counts II and V. The reporter's transcript of the proceedings on that day are not in the record on appeal, but there is no contention that there was any lack of the advice and waivers required by In re Tahl-(1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 485. Following the plea the court appointed two psychiatrists to examine defendant.

At all times to and including the time of sentence, defendant was represented in the superior court by two reputable members of the criminal trial bar, who had been employed by defendant's father.

On January 7, 1974, defendant was before the court for sentence.

There was a discussion by court and counsel as to whether probation should be granted. Reference was made to the reports of the court-appointed psychiatrists, and the reports of others employed by defendant. At the request of defendant's counsel, the court heard an oral statement by defendant's father and by Dr. Coburn, a psychiatrist who had examined defendant. No request was made for presentation of other information or argument. At the conclusion of the hearing the court found that this was not a proper case for mentally disordered sex offender proceedings, denied probation, and sentenced defendant to state prison on each count, the terms to run concurrently. The allegations that defendant was armed were stricken and the other three counts of the information were dismissed.

No appeal was taken from that judgment.

On February 4, 1974, a new attorney of record filed on behalf of defendant a written motion 'to vacate and set aside the judgment of conviction upon a plea of guilty' and 'for a writ of error coram nobis'. The notice specified 15 'grounds' of the motion, the general tenor of which was that (a) defendant was in a 'disturbed mental state' and unable to understand the nature and consequences of his plea, (b) counsel had not represented defendant properly, (c) the probation report and one of the psychiatric reports contained misstatements, and (d) the sentence was unduly severe. Declarations of defendant's

Page 14

fiancee, his father and his mother were attached in support of the motion.

[47 Cal.App.3d 572] On February 7 a declaration by defendant was filed, particularizing his dissatisfaction with the proceedings and the conduct of his trial counsel. This declaration of defendant asserted that at the time he pled guilty he 'was in a state of mental haze, tension, anxiety and confusion and unable to think clearly or understand the possible effects and consequences of his plea of guilty.' The declaration concluded with a request that the court grant his petition as a petition for writ of error Coram nobis, and permit him to withdraw his guilty plea.

A hearing on this motion was held on March 22, 1974. At that time the court considered the declarations which had been filed on behalf of defendant, together with the answering declarations of the deputy district attorney who had prosecuted the case, the two attorneys who had represented defendant, and an associate of one of those attorneys. The court also heard the testimony of the defendant's father, who presented to the court a letter from a Harvard law professor whom he had consulted. The motions were then taken under submission.

On March 25, 1974, the court made a minute order denying defendant's motion. 1 This order contained express findings to the effect that defendant was legally sane and able to understand the proceedings and to cooperate with his attorneys; that he 'did have the competent assistance of experienced, well-prepared defense counsel; that the pleas had been voluntarily and intelligently made, that the sentencing proceedings were regular.'

On May 15, 1974, defendant filed a notice of appeal from the order 'made . . . on March 25, 1974 (1) denying defendant's motion to withdraw plea of guilty and to vacate judgment; (2) denying defendant's petition for writ of error Coram nobis; (3) and denying defendant's application for certificate of probable cause.'

We first deal with the Attorney General's motion to dismiss the appeal made upon the ground that the order of March 25, 1974, was not appealable. The Attorney General contends 'The appeal must be dismissed as it is from the denial of a motion to withdraw a guilty plea and there is no certificate of probable cause for appeal in the record.'

[47 Cal.App.3d 573] This characterization of the appeal is inaccurate as the foregoing statement of facts demonstrates. The appeal is from the denial of a motion to set aside a judgment. The only statutory requirement for a certificate of probable cause is in Penal Code section 1237.5 which refers only to appeals 'from a judgment of conviction.' 2

In this case an appeal from the judgment, if taken and perfected in accordance with the provisions of Penal Code sections 1237 and 1237.5 and rule 31(d), California Rules of Court, would have been an exercise in futility. Appeals are heard and decided upon the record made in the trial court leading up to the order or judgment appealed from. (People v. Strickland, 11 Cal.3d 946, 955, 114 Cal.Rptr. 632, 523 P.2d 672.) The matters urged by defendant as grounds for setting

Page 15

aside his conviction do not appear in the record made in the trial court prior to judgment. Defendant is relying wholly upon matters raised and submitted to the court after judgment. The record made prior to judgment contains no arguable ground of reversal, as defendant's counsel doubtless recognized when he prepared his attack by way of a post-judgment motion, supported by declarations alleging matters not theretofore submitted to the court.

The proceeding in the superior court, heard March 22, 1974, was in substance an application for a writ of error Coram nobis. Historically, Coram nobis was a civil proceeding, but in modern procedure "the office of the writ of Coram nobis is exercised by a mere motion to set aside a judgment." (In re Paiva (1948) 31 Cal.2d 503, 510, 190 P.2d 604, 609.) Thus the Supreme Court has now said that 'a petition for writ of Coram nobis is the equivalent of a motion to vacate a judgment.' (People v. Griggs (1967) 67 Cal.2d 314, 316, 61 Cal.Rptr. 641, 642, 431 P.2d 225, 226.)

Such a motion to set aside a judgment of conviction is considered a part of the criminal case, and an order of the trial court denying such a motion may be appealable by the defendant under Penal Code section 1237, subdivision 2 (formerly subd. 3), as an 'order made after judgment, affecting the substantial rights of the party.' (In re Paiva, Supra, 31 Cal.2d 503, 190 P.2d 604; In re Horowitz, 33 Cal.2d 534, 537, 203 P.2d 513.)

[47 Cal.App.3d 574] Although the grounds of...

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