People v. Dowding

TOBRINER, J.

Appellant pursues an erroneous procedure when he attempts to set aside that portion of a judgment adjudicating him an habitual criminal by means of a writ in the nature of

coram nobis.

Whatever substance there may be to appellant’s basic position, he can properly present it solely by application for a writ of habeas corpus.

The case arises from appellant’s appeal from the denial of a motion to annul, vacate, and set aside that portion of a judgment of October 27,1930, adjudicating him as an habitual criminal. Appellant was tried and convicted upon the charge of robbery in the first degree and burglary in the first degree. The trial court having found that appellant had been previously tried and convicted of grand larceny by the Fresno County Superior Court on February 9, 1919, burglary in the second degree by the King County Superior Court of the State of Washington on November 21, 1922, and attempted robbery by the San Francisco Superior Court on January 28, 1924, it adjudged him an habitual criminal under section 644 of the Penal Code and ordered that he be confined in the state prison for not less than his natural life. Appellant contends that neither the conviction for second degree burglary suffered in Washington nor that in California for attempted robbery are within the purview of section 644 of the

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Penal Code as it existed either prior, or subsequent, to his adjudication as an habitual criminal.

Appellant’s motion in substance comprises a petition for a writ of

coram nobis.

“ [A]n attack on a judgment by motion to vacate it is in legal effect a proceeding for a writ of error

coram nobis,

whether it be called by that name or not.”

(People

v.

Mason

(1958), 163 Cal.App.2d 630, 632 [329 P.2d 614];