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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy Diaz ADRIANO, Defendant and Appellant.

Cr. 1237.

Decided: August 15, 1958

Roy Diaz Adriano in pro. per., and Rock Zaitzow, San Diego, for appellant. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

On May 6, 1953, petitioner was found guilty by a jury of the crime of robbery and apparently there was no appeal from the judgment in that action. On June 17, 1957, petitioner filed in the Superior Court of Fresno county a ‘Motion to Annul and Vacate and Set Aside Judgment.’ On July 17, 1957, the said Superior Court denied petitioner's motion and on July 30, 1957, he appealed from the order denying it. This appeal is now pending in this court (4th Criminal No. 1229). On October 16, 1957, petitioner filed in this court, in 4th Criminal No. 1229, a ‘Motion for Order in Nature of Writ of Mandate’ in which he sought to compel the county clerk of Fresno county to prepare a certified clerk's and reporter's transcript of the proceedings in the robbery trial and to forward said transcript to him. On October 17, 1957, petitioner's motion for order in the nature of writ of mandate was denied by order of this court.

The present proceeding was commenced in Superior Court of Fresno county by the filing by petitioner on November 5, 1957, of a ‘Motion for Order in the Nature of Writ of Mandamus', in which petitioner sought an order compelling the county clerk of Fresno county to prepare and deliver to him the same transcripts sought in his application to this court filed on October 16, 1957. On December 30, 1957, the Superior Court of Fresno county denied petitioner's motion and the instant appeal is from the order denying it.

The record shows that the issues raised in petitioner's first pending appeal (4th Criminal No. 1229) are the same issues raised in the present appeal. We therefore conclude that the order of the Superior Court dated December 30, 1957, was correct under the circumstances shown by the record.

Order affirmed.

MUSSELL, Justice.

GRIFFIN, P. J., and McCABE, J. pro tem., concur.

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