People v. Romano

AGEE, J. Defendant was convicted of a violation of section 288 of the Penal Code by his plea of guilty. His application for probation was denied and he was sentenced to state prison.

There was no motion for a new trial or appeal from the judgment of conviction. Up to and including pronouncement of sentence, defendant was represented by court-appointed counsel, Ben F. La Mar, Jr.

Seven months later, defendant mailed to the trial court a petition for a writ of error coram nobis. He sought to set aside his plea of guilty and the judgment based thereon.

The pertinent allegations in the petition are as follows: that fraud was practiced upon defendant in that the “members of the San Mateo Police Department, Deputy District Attorney Mr. Walter H. Harrington, Jr., and attorney Mr. Ben F. La Mar persuaded petitioner to plead guilty, as charged, with the firm promise that he would be granted probation”; that he believed that the promise would be honored and therefore he pled guilty. The petition infers that defendant claims that he is not guilty, although this is not expressly stated.

The allegations of the petition, if found to be true, might entitle defendant to the relief requested. (People v. Gilbert, 25 Cal.2d 422, 442-443 [154 P.2d 657]; People v. Campos, 3 Cal.2d 15, 17 [43 P.2d 274]; People v. Odlum, 91 Cal.App.2d 761, 771 [205 P.2d 1106]; People v. Butterfield, 37 Cal.App. 2d 140 [99 P.2d 310]; 12 Cal.Jur.2d, Coram Nobis, § 14, pp. 565-567.)

The petition was unverified and was not supported by affidavits or any other evidence. Its charging allegations were denied by the affidavits of La Mar and three deputy district attorneys.

Defendant was not represented by counsel at the hearing of the petition. It was denied and defendant has appealed from the order. We appointed attorney Jack M. Wiseman to represent defendant on this appeal. (This appointment and that of the trial court are on the ground of indigency.)

Appellant states the issue as follows: “The issue to be considered in the present appeal appears to be whether the trial court in failing to appoint counsel to represent the [218]appellant on his petition for writ of error coram nobis contravened and violated the Fourteenth Amendment of the Constitution of the United States and [hence] denied the appellant ‘ due process of law.' ’’