People v. Ponce

[272]

WHITE, P. J.—

This is a motion by respondent to dismiss an appeal taken from an order of the Superior Court of Los Angeles County denying a petition for writ of error

coram nobis

or in the alternative for a writ of habeas corpus.

The record reflects that appellant was convicted on July 29, 1949, of two counts of robbery in the first degree, and one count of kidnapping for the purpose of robbery; that he admitted two prior convictions of a felony and that he had served terms of imprisonment therefor.

Pursuant to the provisions of section 644, subdivision (a) of the Penal Code, the court adjudged respondent to be an habitual criminal. He was sentenced to the state prison for the term prescribed by law upon the conviction of the foregoing robbery counts, and for the offense of kidnapping for the purpose of robbery he was sentenced to the state prison for the term of his natural life with possibility of parole.

From the foregoing judgments appellant appealed, and on March 2, 1950, the judgments were affirmed by Division Three of this court

(People

v.

Ponce,

96 Cal.App.2d 327 [215 P.2d 75]).

On January 2, 1951, appellant filed in the Superior Court. of Los Angeles County a petition for a writ of error

coram nobis

or alternate writ of habeas corpus, and on January 11, 1951, said writs were denied. On January 12, 1951, appellant filed a notice of appeal in this court from the order of the superior court denying his petition for the foregoing writs.

Section 1265 of the Penal Code provides that after the judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for writ of error

coram nobis

shall be brought to vacate said judgment except in the court which affirmed the judgment on appeal; and when a judgment is affirmed by a District Court of Appeal and, as in the instant case, a hearing is not granted by the Supreme Court, the application for the writ shall be made to the District Court of Appeal. The superior court was without jurisdiction to entertain appellant’s petition for a writ of error