People v. Miller

DRAPER, P. J.

In 1954, a jury found petitioner guilty

of

first degree murder, two counts of assault with a deadly weapon two counts of kidnapping, possession of a concealable firearm by a convicted felon, and possession of narcotics. The jury having recommended life imprisonment on the murder conviction, he was sentenced to state prison on all counts March 8, 1954. He took no appeal. On December 21, 1962, almost nine years after judgment, he filed this petition for writ of error

coram, nobis

in the trial court, and appeals from order denying the writ.

[126]

Appellant’s request for appointment of counsel on appeal ivas denied. We are well aware that on the “first appeal, granted as a matter of right,” an appellant is entitled to appointment of counsel

(Douglas

v.

State of California,

372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]). Here defendant did not avail himself of the right to such an appeal. Denial of

coram nobis

is appealable as an “order made after judgment” (Pen. Code § 1237;

People

v.

Martinez,

88 Cal.App.2d 767, 769 [199 P.2d 375]). But

coram nobis

is an extraordinary remedy, and the right to relief under it is not absolute. Bather, the statutory right to move for new trial and to appeal from the judgment have largely supplanted its broad common law function

(People

v.

Reid,

195 Cal. 249 [232 P. 457, 36 A.L.R. 1435]). In California, there is no statutory authority for the writ, but it is a court-made proceeding which constitutes a collateral attack. The strong presumption supporting a judgment which has become final requires that an applicant for this writ make a prima facie showing that he comes within its narrow scope