People v. Gennaitte

[546]

SHINN, P. J.

On May 2, 1951, an information was filed charging Angelo Michael Gennaitte with the crime of kidnaping for the purpose of robbery on or about January 17, 1946, and alleging that he had been absent from the State of California from October 18, 1946, to September 21, 1950, the date of the issuance of the complaint. The information also alleged that on or about November 10, 1946, defendant was convicted in the Circuit Court of Allen County, Indiana, of the crime of car-taking, a felony, and had served a term - of imprisonment therefor. Defendant pleaded not guilty to the charge and denied the Indiana conviction, but prior to trial admitted the conviction. The case was tried to a jury, which returned a verdict finding defendant guilty as charged, and also that the person kidnaped had suffered bodily harm, with a recommendation of life imprisonment without possibility of parole. (Pen. Code, § 209.) Judgment and sentence were entered accordingly on August 3, 1951, and defendant’s motion for new trial and application for probation were denied on the same date. No appeal was taken from the judgment or order. On June 1, 1953, defendant filed in the superior court a motion to vacate the judgment and verdict, seeking relief in the nature of a writ of

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In support of his motion to vacate the judgment, defendant alleged, in substance, the following: (1) the prosecution “used improper methods calculated to produce a wrongful conviction” in that the prosecuting attorney charged that defendant had fled the state on October 18, 1946, whereas the truth was, as the prosecution knew, that on October 15, 1946, defendant was before the Circuit Court of Allen County, Indiana, being Sentenced for car theft, and in that during the trial the prosecution alluded to the prior conviction although defendant had admitted it before trial, this being contrary to the provisions of section 1025 of the Penal Code; (2) the deputy public defender failed to render to defendant “fidelity, secrecy, diligence and skill,” violating his “obligation, duty and trust,” and also failed to file notice of appeal within the time allowed, thus depriving defendant of his right to appeal; (3) the verdict and judgment were contrary to the evidence and to law; (4) the defendant is imprisoned without due process of law, and the privileges and immunities and equal protection clauses of the United States Constitution were violated; (5) the trial court failed to instruct the jury correctly in connection with evidence of defendant’s flight from the State of California; (6) the trial court was prejudiced against the defendant, and abused its discretion in overruling defendant’s objections to