People v. Sica

• Decision Date: 13 February 1953
• Docket Number: Cr. 4942
• Citation: 253 P.2d 75,116 Cal.App.2d 59
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SICA.

Page 75

253 P.2d 75

116 Cal.App.2d 59

PEOPLE v. SICA.

Cr. 4942.

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

Feb. 13, 1953.

Hearing Denied March 12, 1953.

Russell E. Parsons, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Frank Richards, Asst. Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

FOX, Justice.

This is a motion to dismiss defendant's appeal.

In September, 1951, defendant was convicted, in the Superior Court of Los Angeles County, of conspiracy to violate section 337a of the Penal Code and sentenced to the county jail for one year. His appeal from the judgment was affirmed by this court, 112 Cal.App.2d 574, 247 P.2d 72, and a hearing was denied by the Supreme Court. In September, 1952, the remittitur affirming the judgment was filed in the superior court. Thereafter defendant filed in the superior court a petition and notice of motion, supported by affidavits, to vacate and set aside the judgment against him. He appeals from the order denying his motion and petition. The appear, however, must be dismissed.

Section 1265, Penal Code, so far as here material, provides 'that if a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of said judgment, except in the court which affirmed the judgment on appeal. When a judgment is affirmed by a district court of appeal and a hearing is not granted by the Supreme Court, the application for the writ shall be made to the district court of appeal.' There can be no doubt that defendant's petition and motion in the superior court was 'brought to procure the vacation of said judgment' against him. The superior court was, therefore, without jurisdiction to entertain defendant's motion and petition because the district court of appeal, under the plain language of the code section, had exclusive jurisdiction thereof. People v. Ponce, 103 Cal.App.2d 271, 272, 229 P.2d 77; People v. Dunlop, 102 Cal.App.2d 314, 318, 227 P.2d 281; People v. Schunke, 102 Cal.App.2d 875, 877, 228 P.2d 620.

Defendant challenges the quoted portion of section 1265, Penal Code, as an unconstitutional legislative encroachment on the original jurisdiction of the superior court as provided in Article VI, section 5, of the California Constitution. We are satisfied, however, that the amendment is procedural in character and therefore within the constitutional power of the Legislature. Ex parte Harker, 49 Cal. 465, 467; In re Garner, 179 Cal. 409, 412, 177 P. 162; Sacramento, etc., D. Dist. v. Superior Ct., 196 Cal. 414, 432, 238 P. 687. 'The power of the Legislature to regulate criminal and civil proceedings and appeals is undisputed.' Brydonjack v. State Bar, 208 Cal. 439, 442-443, 281 P. 1018, 1020, 66 A.L.R. 1507.

The amendment does not divest the Superior Court of any measure of the jurisdiction conferred upon it by the Constitution. A careful reading of Article VI, section 5, discloses no intimation that an application in the nature of a writ of error coram nobis belongs to that class of proceedings over which original jurisdiction is vested in the superior court On the contrary, it has been held in this state that a petition for a writ of error coram nobis is regarded, in practical effect, as a motion to vacate a judgment, People v. Butterfield, 37 Cal.App.2d 140, 143, 99 P.2d 310, and is neither a new adversary suit nor an independent action, but simply a part of the proceedings in the case to which it relates. In re Paiva, 31 Cal.2d 503, 509, 190 P.2d 604. Far from being of constitutional origin, the 'proceeding designated 'coramnobis' in this state is a court-made proceeding * * *.' People v. Adamson, 34 Cal.2d 320, 329, 210 P.2d 13, 17. It was contrived by the courts at an early epoch in the growth of common-law procedure to provide a corrective remedy 'because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment.' People v. Vernon, 9 Cal.App.2d 138, 140, 49 P.2d 326, 327. The gradual development of remedies and forms of relief nonexistent at common law by legislative action designed to rectify judgments based upon a restricted class of errors has served to confine within narrow limitations the circumstances under which a trial court may grant motions in the nature of a writ of error coram nobis. People v. Shorts, 32 Cal.2d 502, 512-513, 197 P.2d 330; People v. Adamson, supra; People v. Reid, 195 Cal. 249, 258, 232 P. 457, 36 A.L.R. 1435. It follows that where the action of the Legislature in providing new statutory remedies has been held to abridge or supersede the use of the writ of error coram nobis, People v. Mooney, 178 Cal. 525, 529, 174 P. 325 the Legislature may introduce further procedural incidents to the availability of the writ (and its contemporary counterpart--the motion to vacate judgment) without in any way trenching on the jurisdiction of the superior court.

The Legislature in its wisdom has decided, in amending Penal Code section 1265, to require that after a judgment has been affirmed on appeal, the proceeding in the nature of a petition for a writ of error coram nobis to vacate the judgment shall be addressed to the court which affirmed the judgment; and when, as in the instant case, a hearing is not granted by the Supreme Court, the application shall be made to the District Court of Appeal. In the light of our previous discussion, it is clear that this section falls within the power of the Legislature to enact reasonable statutes regulating the procedural steps to be taken in exercising the relief afforded by the common law writ of error coram nobis and the statutory remedy of a motion to set aside a judgment. Whether the Legislature was animated by a desire to circumvent 'the time consuming practice of making an application * * * in the trial court followed by an appeal from an adverse determination', see concurring opinion of Mr. Justice Edmonds in People v. Adamson, supra, 34 Cal.2d at page 338, 210 P.2d at page 22, and footnote thereto, or by some other cogent consideration we need not here speculate. The achievement of such a purpose is a legitimate legislative objective, and in amending section...