People v. Kerr

California Court of Appeal Sep 12, 1952 No. Crim. 4842Published

Before: White

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Holding. The court held that a motion to vacate a judgment in the nature of a writ of error coram nobis cannot be used to address trial irregularities that could have been raised on appeal, nor does it grant a defendant the right to be present at such proceedings. Furthermore, the court ruled that the defendant waived any objections to jury selection by failing to raise them at the time of trial and by waiting five and a half years to file the motion.

Issues

Does a defendant have a constitutional or statutory right to be present at a hearing on a motion to vacate a judgment?
Can a motion to vacate a judgment (coram nobis) be used to challenge jury selection irregularities that could have been raised on appeal?
Does an unreasonable delay in filing a motion to vacate a judgment justify its denial?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The writ does not lie “to correct an error of law, nor to redress an irregularity occurring at the trial that could be corrected on motion for new trial or by appeal””

“If an accused omits at the proper time to interpose his objections to any irregularities, he is deemed to have waived them”

WHITE, P. J.

In an information filed by the district attorney of Los Angeles County on May 23, 1946, defendant was charged with the crime of robbery, a felony, committed on or about the 6th day of May, 1946.

[92]

The information further charged the defendant with two prior convictions.

On May 27, 1946, the public defender was appointed by the court as counsel for the defendant, and the latter was duly arraigned and waived reading of the information. On motion of defendant, the time to plead was continued to May 29,1946.

On the last-named date defendant with his counsel present regularly entered his plea of “not guilty as charged in the information.” He denied the prior convictions as alleged, and the trial of the cause was set for July 18, 1946.

On the latter date the trial was had by jury, and the defendant, outside the presence of the jury, admitted each prior conviction as alleged in the information. The jury returned a verdict finding defendant guilty of robbery, a felony, as charged in the information, and found the offense to be robbery of the second degree. Defendant made a motion for new trial which was denied. He waived time for sentence, and no legal cause appearing why judgment should not be pronounced, the court sentenced defendant to the state prison for the term prescribed by law.

The court also adjudged the defendant to be an habitual criminal pursuant to the provisions of section 644, subdivision (a), of the Penal Code.

On February 4 and 13, respectively, 1952, defendant filed in the superior court a notice of motion and motion to annul, vacate and set aside the judgment on the ground that the trial court was without jurisdiction to render judgment against him, in that he was denied the right to challenge or select any of the jurors that tried the cause and, therefore, he was deprived of his constitutional right to due process of law as guaranteed by the Constitution of the State of California and the 14th Amendment to the Constitution of the United States. A hearing on said motion was held on March 3, 1952, and the same was denied. From the order denying said motion defendant prosecutes this appeal.

People v. Kerr

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WHITE, P. J.

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