People v. Lewis

PEEK, J.

This is an appeal by the defendant from an order denying his application and motion to “vacate, annul, set aside and modify” the judgment of conviction previously entered by the court.

The record discloses that on June 1, 1936, an information was filed by the District Attorney of San Joaquin County, charging the defendant with the commission of the crime of burglary, a felony, and three prior convictions and imprisonments for crimes amounting to felonies.. To all of these charges the defendant entered a plea of not guilty and- not guilty by reason of insanity. The jury by its verdict found defendant guilty of burglary in the second degree and further found that he had suffered the three prior convictions and imprisonments as alleged. Upon the plea of not guilty by reason of insanity the jury likewise found against the defendant. A motion for a new trial was made but was denied. The court then decreed the defendant to be an habitual criminal and sentenced him to life imprisonment. On January 11, 1943, nearly six and one-half years after his conviction the defendant filed his motion to vacate and set aside the judgment previously entered, which motion was denied by the trial court. It is from the order denying such motion that he has appealed.

The original proceeding, although entitled a motion to vacate judgment, etc. is for all purposes and intent an application for the common law writ of

coram nobis.

Under the well established rules governing the issuance of such writ it is incumbent upon the defendant to establish by a preponderance of substantial and credible evidence that the error of which he complains was such that he was deprived of legal rights by extrinsic causes amounting to a deprivation' of a trial on the merits.

(People

v.

Schwarz,

201 Cal. 309 [267 P. 71];

People

v.

Reid,

195 Cal. 249 [232 P. 457, 36 A.L.R. 1435];

People

v.

Deutsch,

16 Cal.App.2d 121 [60 P.2d 155].)