People v. Hodge

[593]

DRAPER, J. pro tem.

*

Petitioner's application for writ of error coram

nobis

was denied by the trial court without hearing. Petitioner appeals. By his petition, appellant sought to withdraw his plea of guilty to the murder of Roy E. Kapphahn, and to set aside the judgment entered upon that plea.

Appellant’s plea of guilty was entered and judgment pronounced November 2, 1953. No appeal was taken. His present application was not filed until March 12, 1956. It is well settled that a petitioner in a coram

nobis

proceeding must allege facts showing diligence in discovering and presenting the facts upon which he relies for the writ.

(People

v.

Shorts,

32 Cal.2d 502, 512 [197 P.2d 330] ;

People

v.

Stonom,

139 Cal.App.2d 408 [293 P.2d 807].) Here all the facts alleged by petitioner were known to him at the time of plea. His only allegation to excuse his delay is that he formerly thought that habeas corpus was the proper remedy. He presented three applications for that writ to the Supreme Court of California, petitioned for rehearing upon denial of two of them, and petitioned the United States Supreme Court for certiorari after one such denial. He alleges that he has discovered that coram

nobis

is his proper remedy, and now seeks it. He does not allege the date or manner of such discovery. It seems clear that he has not met the burden of showing diligence. However, the course usually followed by appellate courts in such cases, particularly where the appellant acts as his own attorney, suggests review of the substance of appellant’s allegations.

His principal complaint appears to be that the district attorney, by promises to recommend life imprisonment rather than the death penalty, induced the plea of guilty. But the district attorney did recommend the life sentence, and, more important to appellant, that is the sentence imposed by the court. He got precisely what he bargained for. It is a perversion of the rule of