People v. Rushing

VALLÉE, J. Appeal from an order denying defendant’s motion to vacate a judgment.

On April 27,1956, an information was filed charging defendant in two counts with grand theft and a violation of section 503 of the Vehicle Code. The information alleged that prior to the commission of the offenses charged defendant had been [799]convicted of two felonies and had served terms of imprisonment therefor. At defendant’s arraignment the public defender was appointed his counsel. On May 4,1956, his counsel being present, defendant pleaded guilty to the offense charged in Count II—violation of section 503 of the Vehicle Code— and admitted the prior convictions. A probation report was ordered.

On May 25, 1956, defendant being present with his counsel, probation was denied, the admission of the prior convictions was withdrawn, the prior convictions were denied, defendant waived a jury trial as to the prior convictions and no finding was made with respect to them, Count I was dismissed, and defendant was sentenced to state prison on Count II. No appeal was taken from the judgment.

On August 20, 1956, defendant filed with the clerk of the superior court a document titled “Motion to Vacate, Annuli Quash and Set Aside Judgment, the Judgment is Void on the Pace of the Judgment Roll.” On August 28, 1956, an order was made denying the motion. Defendant appealed.

The grounds stated in the motion were: 1. The “judgment is void on the face of the judgment roll, and is repugnant to the 1st, 4th, 5th, 6 th, 8th and 14th amendments of the United States Constitution.” 2. The court was not authorized to punish defendant twice “for the same pretended offense,” which defendant calls “double jeopardy.” 3. “Numerous grounds but only one ground needs to be proved.” 4. “The verdict is contrary to law; unwarranted, unfounded.” 5. The judgment is “barred by the statutes of limitations for over (755) years since the signing of the Magna Charta.”

The proceeding is in the nature of a petition for a writ of error coram noMs and is of limited scope. As we said in People v. Suarez, 142 Cal.App.2d 719, 720 [298 P.2d 895] :

“In order to present a meritorious application for vacation of a judgment there must be a strong showing of the existence of some fact which was unknown to the petitioner at the time of trial and which could not have been ascertained by him in the exercise of reasonable diligence and the fact must be one which, if it had been known, would have prevented the rendition of the judgment. (12 Cal.Jur.2d, Coram Nobis, p. 550.) ”