People v. Del Campo

HERNDON, J.

This is an appeal from an order denying appellant’s petition denominated “Petition to Vacate Judgment. ’ ’

On July 30, 1958, in the Superior Court of Los Angeles, appellant was convicted of a violation of section 11500, Health and Safety Code. He was charged with two prior felony convictions, one in Texas in 1935 for the crime of “Theft Over $50” and the second in California in 1952 for violation of section 11500, Health and Safety Code. The People’s case was submitted on the transcript of the preliminary hearing, and appellant testified in his own behalf. The court found appellant guilty as charged but made no finding as to the prior convictions. The record indicates that appellant waived the right to a probation report, “. . . being ineligible for pro

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bation.” There was no motion for a new trial and no appeal was taken from the judgment of conviction.

More than three months later, on November 18, 1958, by his present attorney, appellant filed his petition to vacate the judgment of conviction. Although not so denominated, the petition bears the essential characteristics of a petition for the writ of error

coram nobis.

(See

People

v.

Mendez,

144 Cal.App.2d 500, 502-503 [301 P.2d 295];

People

v.

O’Brien,

97 Cal.App.2d 391, 392 [217 P.2d 678].) However, in certain of its allegations and in its prayer the petition seems to assume the aspect of a petition for a writ of habeas corpus. (See 24 Cal.Jur.2d 409, § 2.)

The petition, after reciting the stipulation by which the case was submitted on the transcript, continued with a recitation of the testimony purportedly given at the preliminary hearing on June 16, 1958. The petition indicates that officers of the Los Angeles Police Department, having received communications from a reliable informant to the effect that the occupant of the residence at 1159 Lake Street in the county of Los Angeles was in possession of contraband, entered the premises and found appellant there in possession of a substance identified as heroin.