People v. Allenthorp

TOBRINER, J. -In 1958 defendant suffered conviction for petty theft in the Municipal Court, Anaheim-Fullerton Judicial District. On appeal, the Appellate Department of the Superior Court of Orange County affirmed the judgment. Many years thereafter, on October 16, 1964, defendant filed in the Superior Court of Orange County a notice of motion to vacate the judgment. Treating the notice of motion as a petition for writ of error coram nobis (see People v. Painter (1963) 214 Cal.App.2d 93, 95 [29 Cal.Rptr. 121]) the court on April 2, 1965, denied the petition. Defendant has appealed from that denial.

We have concluded that the superior court lacked jurisdiction to determine the merits of defendant’s petition1 and that the proper tribunal for its adjudication was the appellate [681]department of the superior court.2 We therefore do not reach defendant’s substantive contentions.

Before the amendment of Penal Code section 1265 in 1949 a defendant could appropriately file his petition for writ of error coram nobis in the trial court in which he had been convicted. (Witkin, Cal. Criminal Procedure (1963) § 628, p. 618.) As amended in 1949, however, Penal Code section 1265 specified that after affirmance of a judgment on appeal, a petition in the nature of a writ of error coram nobis must be brought in the court which affirmed the judgment. The issue narrows to whether, in the instance in which the appellate department of a superior court has affirmed a judgment of conviction rendered in a municipal court, the defendant must seek relief in the nature of coram nobis in the superior court or in the appellate department of the superior court.

Despite defendant’s contrary contention, an appellate department of a superior court, which exercises only limited jurisdiction (see Const., art. VI, § 5), may properly consider a petition for writ of error coram nobis. The appellate department comprises the tribunal which in the instant case heard the appeal; it affirmed the conviction. The petition for writ of error coram nobis operates as a part of the proceedings of the original case; it does not introduce a new or separate adversary proceeding. (In re Paiva (1948) 31 Cal.2d 503, 510 [190 P.2d 604]; People v. Sparks (1952) 112 Cal.App.2d 120 [246 P.2d 64].) In People v. Sica (1953) 116 Cal.App.2d 59 [253 P.2d 75], the court held: “A careful reading of article VI, section 5, discloses no intimation that an application in the nature of a writ of error coram nobis belongs to that class of proceedings over which original jurisdiction is vested in the superior court.” (Id. at p. 61.) Hence the appellate department of the superior court would not exceed its jurisdiction in adjudicating a petition for writ of error coram nobis brought by a defendant whose conviction that court has affirmed on appeal.