People v. Serrano

California Court of Appeal Jul 22, 1963 No. Crim. 6893Published

Before: Fox

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Holding. The court denied the appellant's motion for a writ of error coram nobis because the appellant failed to show due diligence in discovering the alleged perjury and because a judgment cannot be set aside in such a proceeding on the ground that it was based on perjured testimony.

Issues

Whether the appellant demonstrated due diligence in discovering the alleged perjured testimony to justify a writ of error coram nobis.
Whether a judgment of conviction may be set aside in a coram nobis proceeding on the ground that it was based on perjured testimony.

Disposition. denied

Quotations verified verbatim against the opinion

“to be entitled to the relief here sought the applicant must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him”

“it is the settled law of this state that a judgment cannot be set aside in a proceeding of this character on the ground it was based on perjured testimony.”

FOX, P. J.

This is a motion on behalf of appellant Jesus Soloman Serrano in the nature of a petition for a writ of error

cor am nobis

(Pen. Code, § 1265) to vacate the judgment convicting him of violating section 11500, Health and Safety Code. His conviction was affirmed in April 1960 by this court in 180 Cal.App.2d 243 [4 Cal.Rptr. 470].

The motion is on the theory that his conviction was based on the perjured testimony of his codefendant and cousin Juan and was therefore obtained in violation of his constitutional rights.

Appellant was represented on appeal by counsel who tried the case. On appeal he made two contentions: (1) entrapment; and (2) insufficient corroboration of the testimony of his asserted accomplice, his cousin Juan. The latter, however, did not appeal.

Appellant was sentenced to the penitentiary. He has been released therefrom and deported to Mexico.

In support of his motion appellant submits a 23-page affidavit of his cousin Juan who now says that he perjured himself; that Jesus was innocent; and that Jesus was unaware that a package he delivered to the undercover narcotics agent contained heroin. Juan explains that he testified falsely against Jesus because all their relatives thought Jesus was a very wonderful boy and spoke very highly of him while they did not speak well of him (Juan); that he realized his testimony would convict his cousin Jesus and thus place them on a level in the eyes of their family and friends. Jesus also submits an affidavit by his cousin Maria Hook that tends to corroborate Juan’s affidavit as to his reason for testifying falsely against Jesus. Jesus also submitted his own affidavit in which he proclaims his innocence.

Initially it should be pointed out that to be entitled to the relief here sought the applicant must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at

[474]

any time substantially earlier than the time of his motion; otherwise he states no ground for relief.

People v. Serrano

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FOX, P. J.

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