People v. Howard

TRAYNOR, C. J.

In February 1963, defendant was sentenced to prison on five counts of first degree robbery. (Pen. Code, § 211a.) He did not appeal. In September 1963, he filed a petition for a writ of error

coram nobis.

He alleged

[238]

that section 671 of the Penal Code

1

is unconstitutional, that the public defender inadequately represented him at trial, that the trial judge erred in failing to instruct the jury to return a separate verdict upon the charge of being armed (Pen. Code, § 1158a), and that the verdict, judgment, and sentence were contrary to law. The trial court denied his request for counsel and summarily denied the petition. On appeal from the order of denial defendant again requested counsel. The District Court of Appeal for the First Appellate District denied this request and affirmed the trial court's order denying the petition. We granted defendant’s petition for hearing to consider, together with

People

v.

Shipman, ante,

p. 226 [42 Cal.Rptr. 1, 397 P.2d 993] whether defendant was entitled to counsel in the trial court or on appeal in this

coram nobis

proceeding.

The rules set forth in

People

v.

Shipman

govern the question of the right to counsel in this case. Since defendant’s petition raises only questions that could have been raised on direct appeal from the judgment of conviction, his allegations, even if true, would not meet the requirements for a writ of error

coram nobis.

Thus, both the trial court and the appellate court correctly refused to appoint counsel.