People v. Porter

DOOLING, J. The defendant was convicted of burglary and a violation of section 288a, Penal Code. The judgments of conviction were affirmed by this court on December 4, 1946. (People v. Porter, 77 Cal.App.2d 142 [174 P.2d 873].) No petition for rehearing or for hearing in the Supreme Court was filed and the remittitur was issued to the superior court in due course. Defendant, after the lapse of nearly a year and a half, on May 3, 1948, filed a petition in this court to recall the remittitur. The petition was submitted to this court and the submission was afterwards set aside to allow defendant to furnish certified copies of additional records to this court which he advised the court he was attempting to procure. Thereafter the defendant informed the court that he did not desire to use these additional records in support of his pending petition to recall the remittitur. The petition has accordingly been resubmitted so that the matter may be decided.

The petition is grounded on the claim that defendant was not properly represented by his attorney on the appeal and that for that reason this court did not consider certain matters occurring at the trial which he now asserts to have been prejudicial and he also seeks to reopen the matter of the sufficiency of the evidence to support the judgments. This court fully considered the latter claim in our original opinion. The other asserted errors concern the expert testimony by which defendant alleges that he was taken by surprise and which he claims he was not afforded time to secure other expert evidence to rebut and certain other claims of prejudicial misconduct. These points were not urged on the original appeal and petitioner seeks to urge them now on the ground that his attorney improperly failed to present them. In this respect the following appears in the original opinion filed in this case (People v. Porter, supra, 77 Cal.App.2d 142-143):

[361]“After the opening brief was filed appellant by letter discharged his attorney and on October 28, 1946, appellant filed a verified document with this court alleging various claimed acts of misconduct upon the part of his attorney by reason of which he alleged that he was prejudiced in the trial court and on his appeal. He was notified by letter mailed the same day that if he desired to file an additional opening brief he should forward a letter to the clerk asking for time to do so. No reply has been received to this letter, and for that reason we now feel justified in acting upon his appeal . . . .”

Petitioner now asserts in an unsworn document, although he filed an affidavit in support of his petition, that he was unable to get another attorney to represent him or to get any further cooperation from his discharged attorney, but he furnishes no explanation why he made no reply to the clerk’s letter or further request for time to the court and he does not attempt to explain his long delay in filing the present petition. The petition might well be denied on the ground of laches.