People v. Zack

SHINN, P. J. This is an appeal from an order denying a petition for writ of error coram nobis.

An information was filed against appellant in 1956, charging him in Count I with a violation of section 32 of the Penal Code on October 3, 1955, in being an accessory to the crime of robbery, and in Count II, with committing a like offense on the following day. It was also alleged, with respect to each count, that appellant had previously been convicted of a felony, to wit, attempted burglary, and had served a term of imprisonment therefore in the Oregon State Prison.

Appellant pleaded guilty as charged in the information and admitted the prior conviction. Probation was denied and he was sentenced to prison for the term prescribed by law, the sentences as to each count to run consecutively. Judgment was rendered February 14, 1956.

April 23, 1957, the instant petition was filed, setting forth various grounds for issuance of the writ. These are: The prior conviction was void and was not available to subject appellant to increased punishment as a subsequent offender; the allegation of a prior conviction as to both counts of the information placed him in double jeopardy for the same offense; in fixing the length of his prison term, the Adult Authority imposed an excessive term of imprisonment. The court below denied the petition, but the record does not disclose the ground or grounds for the ruling.

Upon application of appellant for appointment of counsel, this court appointed an attorney for the purpose of filing a brief, if, upon examination of the record, he found any justification for a brief. The attorney reported to this court that he had examined the record and that, in his opinion, there [430]was no merit in the appeal and the filing of a brief would be unjustified. Appellant was duly so advised and was given the opportunity to file a brief in his own behalf. No brief has been filed. In accordance with our practice we have made an independent examination of the record. (See People v. Logan, 137 Cal.App.2d 331 [290 P.2d 11].)

In our opinion the writ was properly denied. 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 appellant 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. (People v. Adamson, 34 Cal.2d 320, 326-327 [210 P.2d 13], and cases cited.)