People v. Silva

BROWN (R. M.), J.

Appellant appeals from a denial of his application for writ of error

coram nobis.

In June 1963 a judgment was entered adjudging appellant guilty of violation of Penal Code section 288. On October 15, 1963, the appellant filed a motion to annul, vacate and set aside the judgment, which was denied, and an untimely notice of appeal was thereafter filed. His request for relief from default was denied by this court on January 29, 1964. Again on May 4, 1964, he filed a petition for writ of error

coram nobis

contending that he had been denied a trial on the merits and that though the testimony of the complaining witness was available, the only evidence presented by the prosecution was the transcript of the testimony at the preliminary hearing. He also claims, in his brief, that the trial court failed to appoint counsel to represent him, though there is no record of his having requested counsel, and he objects to the fact that the original court trial was held before Judge Fowler but that the first application to annul, vacate and set aside the judgment was heard by Judge Bush, who also heard and denied his petition for writ of error

coram nobis.

The precise issues urged on this appeal were originally presented in his first appearance entitled “Motion to Null, Vacate and Set Aside the Judgment.” A motion to set aside a judgment is essentially the same as a petition for writ of error

coram nobis.

(See

Vernon

v.

Rappaport,

25 Cal.App.2d 281, 283 [77 P.2d 257].) Since the issue concerning the preliminary transcript was determined adversely to appellant on the prior motion, he is thus foreclosed from raising it a

[479]

second time.

(People