People v. Lempia

• Decision Date: 12 September 1956
• Docket Number: Cr. 5521
• Citation: 144 Cal.App.2d 393,301 P.2d 40
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. Adolph William LEMPIA, Defendant and Appellant.

Page 40

301 P.2d 40

144 Cal.App.2d 393

The PEOPLE of the State of California, Plaintiff and Respondent. v. Adolph William LEMPIA, Defendant and Appellant.

Cr. 5521.

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

Sept. 12, 1956.

Rehearing Denied Sept. 26, 1956.

Hearing Denied Oct. 9, 1956.

William Adolph Lempia, in pro. per., and Fredric Spindell and Harold J. Ackerman, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Patrick McCormick, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

This is an appeal from an order denying appellant's petition for a writ of error coram nobis, writ of audita querela, writ of habeas corpus, writ of certiorari, and recall of remittitur.

The record reveals that on December 3, 1951, in the Superior Court of Los Angeles County, an information was filed charging appellant with a violation of Section 11500 of the Health and Safety Code of California, and alleging two prior felony convictions.

On December 5, 1951, accompanied by counsel, appellant appeared in said superior court and entered his plea of not guilty. On February 11, 1952 appellant with his counsel, appeared before the court, withdrew his plea of not guilty and entered a plea of guilty to the charge made against him in the information. On motion of the district attorney each allegation of prior conviction was stricken from the record. On March 19, 1952 appellant's application for probation was denied, judgment was pronounced and he was sentenced to State Prison. No appeal was taken from the judgment.

On June 20, 1955 appellant filed his petition above referred to, and also his notice of appeal from the denial thereof. The petition was denied and the notice of appeal attached thereto was ruled premature on July 15, 1955. On July 29, 1955 appellant filed his notice of appeal.

As a basis for his aforesaid petition appellant alleges that:

'1. His plea of guilty was made through mistake, ignorance, inadvertence and overreaching of his free will.

'2. The evidence used against him was procured by the arresting officers through use of force and fear.'

From a reading of the record and briefs herein it appears to us that this is an appeal from the order denying appellant's petition for a writ of error coram nobis since the statute, Penal Code, section 1506, does not authorize an appeal by a petitioner from an order denying a petition for a writ of habeas corpus.

When the foregoing grounds which form the basis of appellant's petition are considered, it appears that he has misconceived the purpose of the writ of error coram nobis. Under our law, a motion to vacate a judgment in the nature of a petition for a writ of error coram nobis is a remedy of narrow scope. As was said by our Supreme Court in People v. Adamson, 34 Cal.2d 320, 326, 210 P.2d 13, 15: '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. [Citing cases.]' (Emphasis added.) See also People v. Reid, 195 Cal. 249, 255, 256, 232 P. 457, 36 A.L.R. 1435. The matters charged in appellant's petition constitute grounds, that if they had merit, would have been remediable by motion for a new trial and reviewable upon appeal therefrom. All the cases which have come to our attention concur in the conclusion that the writ will not issue for any cause for which the statute provides a remedy, and that its functions are strictly limited to an error of fact for which the statute provides no other remedy. Historically, it may be said that at the time the writ came into general use there was no remedy by appeal or by motion for a new trial, and the ordinary writ of error afforded to a considerable extent the remedy now available by appeal, and the writ of error coram nobis to a very limited extent the remedy now available upon motion for a new trial. The advent of these remedies by statutory enactment have supplanted this ancient writ in so far as its former scope is comprehended in and covered by the statutory remedies.

Furthermore, appellant's contention that his plea of guilty should be set aside on the basis of mistake, ignorance, inadvertence and overreaching of his free will is unavailing because the record discloses that he was represented by counsel at all stages of the proceedings from arraignment to judgment.

Equally unavailing is appellant's claim that the evidence against him was procured by the officers through force and fear, because if such contentions were meritorious they furnished proper grounds for a motion for a new trial or an appeal.

As a matter of legal principle, the rule has been frequently announced that, in order that it may be effective and within the possibility of favorable action thereon, a motion to vacate a judgment must be made 'within a reasonable time' after such judgment has been rendered, and in this state, the concrete examples of what should be construed as 'a reasonable time' would seem to point to the conclusion that in the matter now engaging our attention the delay has been so long that the...