People v. Olgin

DORAN, Acting P. J. This is an appeal by defendant from an order denying a petition for a writ of error coram nobis.

Defendant was charged with the violation of section 11500 of the Health and Safety Code. It was alleged that defendant ‘ ‘ did wilfully, unlawfully and feloniously have in his possession a preparation of heroin.” It was also alleged that defendant had been convicted of five felonies, “grand larceny, in the State of Colorado; burglary, in the State of Nevada ; and possession of narcotics, petty theft with a prior conviction of a felony, and receiving stolen property; the latter three felonies having been committed in the State of California. It was likewise alleged that the defendant had served terms of imprisonment for the five above-named felonies. ’ ’ A trial by jury was waived. Defendant admitted the five felony convictions. “The matter was presented on behalf of the People by the reading of the testimony of the preliminary examination. Defendant was sworn, as was one additional witness, and the matter was submitted to the trial judge who found defendant guilty as charged in the information. ’ ’

Thereafter, “defendant’s motion to strike the prior convictions was denied.” An application for probation also was denied and judgment was pronounced. No appeal was taken from the judgment.

“Subsequently, and on May 17, 1955, defendant filed in the superior court, a document denominated ‘Petition foe a Weit of Error Coeam Nobis and foe the Order to Show Cause Why the Writ Should Not Be Granted : ’

“The matter came on for hearing on May 18, 1955, and on that date the court denied the petition and the order to show cause and directed that the purported notice of appeal attached to the petition was not to be filed or considered as a notice of appeal because it was premature.

“Thereafter, and on June 14, 1955, a ‘Notice of Appeal From the Whole Thereof’ was filed with the clerk.”

“In the petition filed in the superior court Olgin stated that when he was sentenced and committed to Chino he instructed his attorney to appeal and to put his transcript in his personal property for the purpose of protecting his appeal; that there[809]after he had no means of knowing whether his appeal had been perfected and that the statutory period for filing the written notice of appeal elapsed on his arrival at San Quentin.