In Re Leyva

136 Cal.App.2d 750 (1955) In re FERNANDO F. LEYVA, JR., on Habeas Corpus.

Crim. No. 3207. California Court of Appeals. First Dist., Div. One.

Nov. 7, 1955. Fernando F. Leyva, Jr., in pro. per., for Petitioner.

PETERS, P. J.

[1] This petition for habeas corpus is based on the contention that petitioner was convicted by the use of illegally secured evidence. There is no allegation that the point was raised before the trial court or on appeal. The sole contention is that the use of such evidence denied to petitioner "due process" of law. In People v. Cahan, 44 Cal.2d 434 [282 P.2d 905], the Supreme Court was careful to point out that the rule involved was a rule of evidence and not a rule of constitutional law. (See pp. 439-444.) If this determination is to be questioned, it should be in the Supreme Court and not in an intermediate appellate court that is bound by Supreme Court determinations. Under the circumstances, habeas corpus may not be used to relitigate the issue.

The petition for habeas corpus is denied.

Bray, J., and Wood (Fred B.), J., concurred.