People v. Gerundo

VAN DYKE, P. J. Motion to dismiss appeal upon the ground the appeal is so completely without merit as to be frivolous.

[201]On May 8, 1951, Vito Gerundo was convicted of a violation of section 484 of the Penal Code and was granted probation. His motion for new trial was denied and he appealed. The order appealed from was affirmed (see People v. Gerundo, 112 Cal.App.2d 797 [247 P.2d 374]) on August 23, 1952, and his petition for a hearing was denied by the Supreme Court September 18th following. In the meantime and on November 13, 1951, Gerundo filed a petition in the trial court, supported by an affidavit. He asked a new trial upon- the ground that newly-discovered evidence was available tending to show that the complaining witness at his trial had testified falsely, that his conviction was procured by fraud and perjury and that these matters, with knowledge thereof, were wrongfully concealed by the People. On November 30th a hearing was had on the petition and evidence was received, the trial court apparently treating the petition as in the nature of a petition for a writ of error coram nobis. The petition was denied, and this appeal was taken from the order of denial.

Treated simply as a motion for new trial the trial court was, of course, without -jurisdiction to grant the desired relief in the matter, both from the lapse of time and from the fact that a previous motion for a new trial had been denied. Considering the motion, however, as one for a writ of error coram nobis, we will, by way of introduction, quote from our opinion in People v. Gerundo, supra, at page 801:

“Regarding the fifth assignment of error, defendant argues, as he does in other connections, that there was a valid existing contract of sale between him and the owners of the automobile which he is alleged to have stolen, and that he therefore had a right to the possession of the car and could not be accused of stealing his own property. There is ample evidence to the contrary. It shows that Smith and Palzis, a corporation in Napa, owned a used car lot. On Monday, April 17, 1950, defendant visited the ear lot and stated to the attendant that he wanted to buy a certain Hudson car there exhibited. The salesman gave him a price of $900 and defendant stated that he would buy the ear if his- wife, in San Francisco, approved; and he requested permission to take the car, promising to return it the following Wednesday. Defendant was referred to the head office of the. corporation, where he signed an agreement to purchase, which described the car, gave the total price as $939, and provided for a down payment of $339, in cash, .the.balance to be paid-in designated monthly installments. There was written upon this instrument: ‘This deal