People v. Burks

[315]

SHOEMAKER, J.

This is an appeal from an order denying the petition of Robert Burks for a writ of error

coram nobis

and motion for the reduction of sentence.

The appellant was indicted for first degree murder on July 17, 1958. Trial by jury began on January 5, 1959; during the trial appellant’s counsel and the district attorney stipulated that the death of the victim resulted from a gunshot wound from a gun fired by the defendant. Upon submission the jury found him guilty of first degree murder. Thereafter appellant waived his right to jury consideration of the issue of the penalty which was then determined by the court and on January 22, 1959, the court sentenced him to the state prison for the term prescribed by law. No appeal was taken, and the appellant states his counsel did not inform him that he had a right to appeal.

The appellant’s first contention is that the evidence was insufficient as a matter of law to show willful, deliberate and premeditated intent to kill required to sustain the finding of first degree murder. His argument is that the evidence actually showed he was engaged in defending himself. The evidence does not require a conclusion in accord with appellant’s views, but more important, it is clear that this contention raises an issue of law which could have been dealt with on appeal. Hence the writ of error

coram nobis

cannot issue.

(People

v.

Martinez

(1948), 88 Cal.App.2d 767, 772 [199 P.2d 375].)

The appellant’s next contention is that his counsel’s failure to advise him of his right to appeal constituted deprivation of liberty without due process of law. It is difficult to accept this statement of appellant inasmuch as he was represented at all stages by capable counsel. However, even though we accept the proposition, it does not provide a ground for the issuance of the writ.