People v. Remling

California Court of Appeal Nov 30, 1956 No. Crim. 1128Published

Before: Coughlin

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Holding. The court affirmed the denial of the defendant's motion to vacate his judgment of conviction, holding that the defendant failed to establish grounds for relief under a writ of error coram nobis and failed to demonstrate the required due diligence.

Issues

Whether the defendant's allegations of perjury, coercion, and ineffective assistance of counsel constitute valid grounds for a writ of error coram nobis.
Whether the trial court properly denied the defendant's request for subpoenas to reopen adjudicated issues of fact.
Whether the defendant's failure to show due diligence in discovering the facts underlying his motion justifies its denial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A motion to set aside and vacate a judgment is in the nature of a writ of error coram nobis which is available “to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of defendant, was not then known to the court.””

“The absence of any allegations showing due diligence, of itself, was sufficient reason for denial of defendant’s application.”

COUGHLIN, J. pro tem.

This is an appeal from an order denying defendant’s motion to set aside a judgment directing his imprisonment in the state penitentiary for the offense of forgery.

[478]

The information in this matter, which was filed April 9, 1954, charged the defendant with the crime of forgery and alleged a prior conviction. On the same day, the defendant was dnly arraigned; waived the services of counsel and time to plead; entered a plea of guilty; and admitted the allegations of a prior conviction. Thereupon, he was arraigned preliminary to pronouncement of judgment and the matter was referred to the probation officer for a pre-sentence investigation. Subsequently the probation officer prepared a report, recommending a county jail sentence, which was not accepted by the court but referred for further investigation, and “the favorable report in defendant’s behalf” was withdrawn. On June 4, 1954, the defendant, appearing with an attorney appointed by the court to represent him, which he says was against his wishes, withdrew his plea of guilty, by leave of court, and entered a plea of not guilty. Thereafter, following a trial by jury, the defendant was found guilty as charged and sentenced to the state prison. No motion for a new trial was made. No appeal was taken. The defendant was delivered to the California Institution for Men at Chino; transferred to the prison at Soledad; and, subsequently, placed in the prison at Folsom.

On April 27, 1956, 22 months after pronouncement of judgment, the defendant filed a written motion to annul, vacate and set aside the judgment in question, upon the ground that the complaining witness “was coerced into signing a criminal complaint falsely”; that the district attorney and a “court appointed public defender,” conspired to suppress evidence favorable to the defendant; that he was denied the right to subpoena witnesses; that his conviction “was based upon the wilful and knowing use of perjured testimony by the prosecutor”; that “no intent to commit perjury was proved”; and, that he was not accorded counsel as guaranteed by the Constitution, because the attorney appointed to defend him was incompetent.

After a hearing upon the motion in question, the court made its order denying the same, which the defendant contends was error.

People v. Remling

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