People v. Williams, Cr. 5167

• Court: California Court of Appeals
• Citation: 48 Cal.Rptr. 67,238 Cal.App.2d 585
• Decision Date: 07 December 1965
• Docket Number: Cr. 5167
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene A. WILLIAMS, Defendant and Appellant.

Page 67

48 Cal.Rptr. 67

238 Cal.App.2d 585

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene A. WILLIAMS, Defendant and Appellant.

Cr. 5167.

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

Dec. 7, 1965.

Hearing Denied Feb. 2, 1966.

Gary M. Merritt, San Bruno, for appellant, (Under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Jay S. Linderman, Deputy Attys.Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from an order of the Supreme Court in and for the City and County of San Francisco which denied his 'Motion to Annul, Vacate and Set Aside the Judgments' in two consolidated cases, in each of which he had been convicted of robbery and sentenced to serve a prison term consecutive to the other. The motion is in effect a petition for writ of error coram nobis and should be treated as such. (People v. Sandoval (1927) 200 Cal. 730, 732-733, 254 P. 893; People v. Silva (1965) 232 Cal.App.2d 477, 478, 42 Cal.Rptr. 723; People v. Painter (1963) 214 Cal.App.2d 93, 96, 29 Cal.Rptr. 121; And People v. Dowding (1960) 185 Cal.App.2d 274, 276, 8 Cal.Rptr. 208.) Although the appealability of the order may depend on the substance of the facts alleged in or adduced in support of the petition, the matter must be entertained in any event to determine whether dismissal or review on the merits is proper. (People v. Thomas (1959) 52 Cal.2d 521, 527-529, 342 P.2d 889; People v. Banks (1959) 53 Cal.2d 370, 377-380, 1 Cal.Rptr. 669, 348 P.2d 102, and fn. 5, pp. 379-381, 1 Cal.Rptr. p. 675, 348 P.2d p. 108; People v. Shorts (1948) 32 Cal.2d 502, 506-507, 197 P.2d 330; and cf. People v. Wadkins (1965) 63 A.C. 105, 110, 45 Cal.Rptr. 173, 403 P.2d 429 with People v. Thornton (1965) 233 Cal.App.2d 1, 3, 43 Cal.Rptr. 691; and People v. Cantrell (1961) 197 Cal.App.2d 40, 45, 16 Cal.Rptr. 905.)

For reasons hereinafter set forth it is concluded that defendant has failed to set forth facts which entitled him to any relief in proceedings of this nature; that the trial court properly summarily denied his motion, and that this appeal should be dismissed.

The facts reflect that on June 21, 1951, defendant and another were jointly charged with robbery in each of two separate informations filed that day, in the first with the robbery of Fred Scott on or about June 3, 1951, and in the second with the robbery of Ernest J. Dobia on or about May 31, 1951. Each information charged defendant with a prior conviction of robbery August 28, 1946. Following arraignment and the entry of pleas of not guilty to both charges by defendant and his codefendant, the cases were consolidated for further proceedings, the surplus allegations of the prior conviction were dismissed from the second information, and defendant admitted the prior as charged in the first information.

According to defendant's motion a trial ensued. The record reflects that on October 16, 1951 judgment was pronounced as first set forth herein.

On May 10, 1965, defendant filed his 'Notice for Motion to Annul, Vacate and Set Aside the Judgment in the Above Entitled and Above Numbered Case [45901-02],' accompanied by the written motion itself, a brief in support thereof, and two affidavits regarding an alleged statement made on or about July 20, 1961, by the victim in the first action.

Defendant's motion, in which he refers to himself as 'petitioner,' sets up the following grounds for relief:

'A. Petitioner * * * was convicted by the use of coerciveness which was used on the victim, by the police department of the City and County of San Francisco, which was false evidence * * *

B. Petitioner's right secured by the confrontation clause was denied, * * * by the court refusal to subpoena the police officer that arrested petitioner on the second of June, 1951, * * *

'C. Petitioner * * * was denied his right to have compulsory process for obtaining witnesses in his favor, for his defense, * * * 'D. [T]he failure of his court appointed counsel to object demonstrates a lack of knowledge of the law, that establishes a denial of his constitutional rights to 'effective aid in the preparation and trial of the case, * * *'

'E. [R]ight to counsel under the Sixth Amendment was infringed, involving the right of petitioner to have separate counsel, due to a conflict of interest, * * *'

Although the notice of motion purported to fix May 17, 1965 as the day for presenting the motion, the matter was called on the calendar, presented to the judge and summarily denied on May 14th. ¹ This appeal ensued.

Defendant's request, contained in his notice of appeal, for all of the records of the municipal and superior court proceedings which led to his sentencing was denied by the lower court, as was a subsequent request to augment the record. A motion addressed to this court for similar relief was granted to the extent of providing a transcript of the proceedings in court on May 14, 1965, and was denied insofar as it sought a record of the original proceedings. These requests and motion were properly denied. (People v. Cantrell, supra, 197 Cal.App.2d 40, 45-46, 16 Cal.Rptr. 905; and see People v. Howard (1965) 62 Cal.2d 237, 238, 42 Cal.Rptr. 7, 397 P.2d 999.)

Defendant's request to this court for the appointment of counsel was held in abeyance pending filing of the transcript of the proceedings before the lower court. It appeared therefrom that the trial court had summarily denied the motion without hearing. A preliminary examination of the record failed to reveal adequate factual allegations stating a prima facie case for relief through issuance of a writ of error coram nobis. His request for counsel was therefore denied and he was instructed to file a brief within thirty days. (People v. Howard, supra, 62 Cal.2d 237, 238, 42 Cal.Rptr. 7, 397 P.2d 999; and see People v. Shipman (1965) 62 Cal.2d 226, 232, 42 Cal.Rptr. 1, 397 P.2d 993.)

Thereafter, no brief having been filed by the defendant within the time designated, the People filed their motion to dismiss the defendant's appeal. In the consideration of this motion this court took cognizance of People v. Rosoto (1965) 62 Cal.2d 684, 43 Cal.Rptr. 828, 401 P.2d 220, where in response to a 'petition for writ of coram nobis or other appropriate relief.' ² the Supreme Court, without comment, appointed a referee to take evidence on the questions, among others, whether or not a key prosecution witness had committed perjury at the trial of the petitioners, and if so whether the People caused or permitted the perjured testimony to be introduced knowing it was such. The court reviewed the referee's report and concluded that no new evidence had been presented which could be allowed to impeach the judgments. It ordered: 'The petition for writ of coram nobis is denied.' The foregoig created a doubt as to the propriety of relegating the defendant to his remedy of a petition for a writ of habeas corpus to secure relief from a judgment of conviction allegedly obtained by the use of false testimony known by the prosecution to be false. (See People v. Adamson (1949) 34 Cal.2d 320, 327, 210 P.2d 13, and discussion infra.) The motion was thereupon continued to a hearing of the appeal on the merits, and defendant was furnished a court appointed attorney who filed a brief herein on his behalf, and presented his case at the hearing thereon.

The allegations of the petition must be examined in the light of the tests laid down in People v. Shipman, supra, 62 Cal.2d 226, 42 Cal.Rptr. 1, 397 P.2d 993, wherein it is stated: 'The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must 'show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.' [Citations.] (2) Petitioner must also show that the 'newly discovered evidence [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner '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 * * *.' [Citation.]' (62 Cal.2d at p. 230, 42 Cal.Rptr. at p. 3, 397 P.2d at p. 995.)

With the possible exception of the first ground, an examination of the petition reflects that the matters asserted by the defendant fail to satisfy the foregoing criteria.

Defendant alleges that he was originally arrested on June 2, 1951 and taken to a police station as a result of a fight with Scott, who subsequently proved to be the complaining witness; that the desk sergeant listened to him, to Scott, and to an unidentified eye witness and told the defendant to go home. He complains, in grounds 'B' and 'C' above, of the failure of the People to confront him with the desk sergeant so he could cross-examine him, and get the name of the eye witness, and the failure of the court ot issue a subpoena for some officer who allegedly arrested him on that date. These matters were, of course, all known to him before judgment and could have been reviewed by motion for new trial or appeal. They cannot furnish grounds for issuance of the writ sought by defendant. (People v. Remling (1956) 146 Cal.App.2d 476, 479, 304 P.2d 97; People v. Cox (1956) 141 Cal.App.2d 158, 160, 296 P.2d 72.)

Defendant alleges in ground 'D' that he was denied his constitutional right to effective aid of counsel in the preparation and trial of his case. Any complaints he has relating to lack of time with which to confer with cou...