People v. Thomas

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 1954, charging him in Count I with the attempted robbery of Manuel Earl Johnson on November 18, 1954, and in Count II with assaulting Johnson with a deadly weapon on the same date. December 17, 1954, appellant made a motion to dismiss Count I under section 995 of the Penal Code; at the same time, he entered a plea of not guilty as to Count II. December 22, 1954, Thomas withdrew his motion to dismiss Count I and entered a plea of not guilty. He was represented at the trial by a deputy public defender. Trial was to a jury which found him not guilty on Count I but found him guilty on Count II. Probation was denied and Thomas was sentenced to state prison for the term prescribed by law. Judgment was rendered March 24, 1955.

March 18, 1958, the instant petition was filed, setting forth as grounds for issuance of the writ that appellant was bound over by the committing magistrate only upon the charge of attempted robbery (Count I), of which he was subsequently acquitted; that the charge of assault with a deadly weapon (Count II), of which he was convicted, “had never been before a committing magistrate”; and that Count II was dismissed by the court under Penal Code, section 995, prior to his trial. 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 referred the matter to the Los Angeles Bar Association Committee on Criminal Appeals for report to the court as to possible merit in the appeal. The matter was assigned to a member of the committee who has made written report to the court stating thát the record had been examined and that in the opinion of the attorney it disclosed no meritorious ground of appeal. After we had examined the record the request for appointment of counsel was denied. Appellant was duly so advised and his time to file a brief was substantially extended. No brief has been filed. In accordance with our practice we have made a thorough study of the record.

In our opinion the writ was properly denied. In order to present a meritorious application for vacation of a judg[362]ment there must be a strong showing of the existence of some fact which was unknown to the applicant 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.) With respect to appellant’s allegation that Count II of the information was dismissed prior to the trial, the record affirmatively discloses that Thomas made a motion to dismiss Count I, which he subsequently withdrew, and that he did not move to dismiss Count II.