People v. Costello

SHINN, P. J. In the respondent’s brief, prepared by Mr. Frank Richards, assistant attorney general, we 'find the following statement of the case and discussion of the several grounds of appeal urged by appellant:

“This is an appeal by defendant from an order denying his petition for a writ of error eoram nobis. It appears that on March 7, 1951 an information was filed in the Superior Court of Los Angeles County charging defendant with three counts of forgery of a fictitious name in certain cheeks which he passed with intent to cheat and defraud. The information also alleged two prior convictions of forgery, one in 1940 and the other in 1948, and that defendant served a term of imprisonment therefor in the state prison. He was arraigned on March 9, 1951 and was represented by counsel. His time to plead was continued to March 16, 1951, at which time defendant pleaded not guilty, denied the prior convictions, and his trial was set for April 11, 1951. On March 30, 1951, defendant came into court with his counsel and entered the additional plea of not guilty by reason of insanity. Doctors were appointed by the court to examine defendant as to his sanity and the case was reset for trial on May 2, 1951. On this latter date, defendant withdrew his plea of not guilty and the trial on the issue of insanity and prior convictions was set for June 25, 1951. Nothing appears in the record on this date, but on July 16, 1951, defendant withdrew his plea of not guilty by reason of insanity and pleaded guilty to count one of the information. He also admitted the alleged prior convictions. On August 15, 1951, defendant was sentenced on count one to the state prison and the other counts in the information were dismissed.

‘ ‘ On February 14, 1952 defendant in propria persona filed in the Superior Court a petition for a writ of error coram nobis contending that his plea of guilty to count one of the information was entered under conditions of fraud, duress or mistake in that at the time of withdrawing his plea of not guilty and entering a plea of guilty to count one, his intentions were merely to permit the court to pass upon the insanity issue without a jury. Attached to his petition are several affidavits from friends who state that he is an alcoholic [483]and when drunk is not conscious of what he is doing. There are also letters to the effect that defendant has been in the Cook County Hospital, Chicago, Illinois, for chronic alcoholism and was classified as having a psychopathic personality. Prom the order denying his petition, defendant filed notice of appeal and also from the judgment rendered August 15, 1951. His appeal from the judgment should be dismissed for the reason that such appeal was not taken within ten days after the rendition of the judgment. (See: Rule 31, Rules on Appeal; In re Horowitz, 33 Cal.2d 534, 537 [203 P.2d 513]; People v. Behrmann, 34 Cal.2d 459, 461 [211 P.2d 575].)