People v. Harincar

WOOD (W. J.), J.

Defendant has appealed from an order of the trial court denying his motion to vacate the judgment of conviction..

Defendant was charged by information with the crime of forgery. It was also charged that he had suffered three prior convictions in the states of Iowa and Minnesota, and that in the case of each prior conviction he had served a term of imprisonment therefor in the state prison. He pleaded not guilty and denied the prior convictions, but thereafter withdrew this plea and entered a plea of guilty and also admitted the prior convictions. The court found him to be an habitual criminal and sentenced him accordingly. The judgment of conviction was entered October 1, 1936, and no appeal was taken therefrom.

A motion was filed by defendant on September 22, 1941, to vacate the judgment entered in 1936, certified copies of the prior convictions being filed with the motion. Defendant claims that if the prior crimes had been committed in California only one of them would have come within the classification of crimes enumerated in section 644 of the Penal Code. The trial court was therefore asked to “relieve the defendant of that portion of the judgment declaring the defendant to be an habitual criminal. ’ ’

Although defendant’s motion is designated a motion

[596]

to vacate the judgment, it is in legal effect under the practice of this state a petition for a writ of error

coram nobis.

In

People

v.

Vernon,

9 Cal. App. (2d) 138 [49 Pac. (2d) 326], it is held that the writ of error

coram nobis

“is nothing more nor less than a motion to vacate a judgment,” and that the remedy provided by the writ could be designated by “the more simple and appropriate name of a motion to vacate the judgment.”

The issue now presented by. defendant was squarely before the court in