People v. Croft

NOURSE, P. J.

This is an appeal from an order denying defendant’s petition for a writ of error

coram nobis.

The petition was made and the appeal briefed in propria persona. At appellant’s request we appointed counsel to represent him at the oral argument. Counsel diligently urged that the facts of the case entitled appellant to relief under the rule of

People

v.

Gilbert,

25 Cal.2d 422, 443 [154 P.2d 657]. However, said argument cannot avail appellant in these proceedings as the facts on which it was based were not sufficiently alleged or proved in the first instance.

Appellant’s petition, verified but not accompanied by any affidavit, and the clerk’s transcript of his original prosecution show in substance the following:

In an information in two counts appellant and George D. Croft, Jr., were accused of (1) burglary, (2) assault with a deadly weapon with intent to commit murder, both committed in Contra Costa County on December 18, 1953, and connected in their commission. Appellant was arrested on that same date. On arraignment on February 18, 1954, both pleaded not guilty. At the trial on April 13, 1954, appellant withdrew his plea of not guilty of the burglary (count 1) and pleaded guilty to that offense. Upon motion of the district attorney count 2 of the information was amended to read “Assault with a deadly weapon, ’ ’ an included offense. Appellant then pleaded guilty to this count as amended after having withdrawn his plea of not guilty to the offense as originally charged. The matter was referred to the probation officer for investigation and in the meantime appellant remanded to custody. Upon motion of the district attorney the information as to George D. Croft, Jr., was dismissed. On April 26th, 1954, the court denied probation, found the burglary to be of

[802]

the first degree and on each count sentenced appellant to San Quentin, the sentences to run concurrently. Appellant was remanded to custody and the next day delivered to San Quentin.