People v. Toth

DRAPER, P. J.

Defendant’s “motion to vacate a void judgment”, properly treated as a petition for writ of error

coram nobis,

was denied by the trial court. Defendant appeals.

Indicted for the murder of his estranged wife, defendant was represented by counsel of his own choice. On January 3, 1961, he pleaded not guilty and not guilty by reason of insanity. Trial was set for February 28. On February 15, defense counsel moved to withdraw the earlier pleas, stating that defendant desired to “make a plea under section 1192.3.” Defendant expressed his own desire that the motion be granted. It was. Defendant personally pleaded “guilty of first degree murder with the specification that the punishment be fixed at life imprisonment,” waived trial on the issue of penalty and waived probation report. Sentence followed. He made no motion for new trial, took no appeal and had made no motion to vacate the plea. This petition was filed January 16, 1963, 23 months after his commitment to prison.

[132]

Defendant asked appointment of counsel on appeal. Since this is not the “first appeal, granted as a matter of right”

(Douglas

v.

State of California,

372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]), we reviewed the petition, found that it stated no facts warranting the remedy he seeks, and denied counsel

(People

v.

Miller,

219 Cal.App.2d 124 [32 Cal.Rptr. 660] [hearing denied by Supreme Court]). Acutely conscious of the value of counsel, we nevertheless reviewed in detail the fact statements in the briefs later filed in propria persona, prepared to treat them as supplementing the petition if any facts warranting coram nobis were even suggested. None were, and thus no reason for appointment of counsel has appeared.

Defendant’s principal contention is that the attorney employed by him told him that he would “get the gas chamber” if the case were tried, and particularly that counsel gave a like estimate to his two daughters. To stop their “worrying and crying” he pleaded guilty. He argues that this amounted to “threats, duress, and intimidation” which induced his guilty plea. He nowhere suggests that any prosecutor or other officer of the state participated in any way in these representations to him. But the advice, persuasion, or expression of opinion of his attorney will not suffice to vitiate his plea, in the absence of some showing of corroboration by a responsible state officer