People v. Esparza

GARGANO, J.

According to the record which we have carefully reviewed, appellant, who was represented by counsel, pleaded guilty on July 19, 1962, to assault with a deadly weapon in violation of Penal Code section 245. Thereafter, appellant applied for probation and on August 6, 1962, he appeared in court with his counsel for the probation hearing. At the conclusion of the hearing the court suspended imposition of sentence and placed appellant on probation for a period of three years, subject to the usual conditions and subject to the further condition that he serve the first 10 months of his probationary period in the county jail. On or about February 27, 1964, (while appellant was still on probation) appellant’s probation was revoked and he was sentenced to the state prison for the term prescribed by law, for the crime to which he had pleaded guilty in 1962. On December 6, 1966, defendant petitioned the Superior Court of Fresno County for a writ of error

coram nobis,

alleging the following grounds for relief: “(a) ‘Excessive punishment’ in a cruel an [sic] unusual manner, (b) Equal protection of the law. Illegal resentencing, (c) Denial of due process of law. Double-Jeopardy.” Appellant’s petition was denied by the respondent court and appellant has appealed.

We agree with respondent’s contention that no relief is available under a writ of

coram nobis

where the alleged error is one of law rather than fact

(People

v.

Banks,

53 Cal.2d 370 [1 Cal.Rptr. 669, 348 P.2d 102]). In fact, the scope of a writ of

coram nobis

is delineated in

People

v.

Shipman,

62 Cal.2d 226, 230 [42 Cal.Rptr. 1, 397 P.2d 993], as follows: ‘ ‘ The writ of

coram nobis

is granted only when three requirements are met. (1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment. ’ [Citing cases.] (2) Petitioner must also show that the ‘newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened