People v. Adamson

SCHAUER, J.

Defendant, an inmate of San Quentin State Prison, is under sentence of death. He has brought before us a purported appeal from an order sustaining without leave to amend a demurrer to his “Petition . . . for a Writ of Error Coram Nobis.” The People move to dismiss the appeal as being “irregular, frivolous, sham and . . . [seeking] only groundless delay in the execution of a valid final judgment,” and also move to vacate an order of the trial court staying execution of sentence. It appearing on the face of the record that the purported appeal is from a nonappealable order, we have concluded that for that reason the appeal should be dismissed and that the motion to vacate the order staying execution should be denied without prejudice.

Seeking vacation of the judgment of conviction, defendant chose to proceed, not by serving and filing a notice of motion, but by filing a “Petition . . . for a Writ of Error Coram Nobis” and procuring an order to show cause “why the said petition . . . should not be granted.” (The order to show cause may properly be regarded as “a notice of motion and a citation to the party to appear at a stated time and place to show cause why a motion should not be granted.”

Difani

v.

Riverside County Oil Co.

(1927), 201 Cal. 210, 213 [256 P. 210];

McAuliffe

v.

Coughlin

(1894), 105 Cal. 268, 270 [38 P. 730].) The People filed a “demurrer, General and Special, to Petition for a Writ of Error Coram Nobis” and a paper entitled “Motion for a Denial of the Relief Prayed for.” Each party filed supporting affidavits. Regardless of the titles of the papers filed, it is apparent that the matter which was before the trial court was a motion to vacate the judgment, not specifically provided for by statute, but seeking relief in the nature of that available by issuance of the common law

[288]

writ of error

coram nobis.