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District Court of Appeal, First District, Division 2, California.


Cr. 2804.

Decided: May 28, 1952

Edward M. Digardi, Oakland, for appellant. Edmund G. Brown, Atty. Gen., Charles A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., for respondent.

Appellant was convicted on October 2, 1945 of violations of section 288 Penal Code and of section 702 Welfare & Institutions Code and is now confined in the State penitentiary. On August 1, 1951 he filed in the Superior Court in pro. per. a petition for a writ of error coram nobis and this appeal is taken from the order of that court denying his petition.

The court appointed counsel to represent the appellant on this appeal and such counsel urges the following points: From his petition it appears that appellant was denied a jury trial and a public trial by reason of the fraud of his counsel, and of any trial on the merits because of his counsel's failure to investigate the facts and produce witnesses suggested to his counsel by appellant.

Since the decision in People v. Adamson, 34 Cal.2d 320, 210 P.2d 13 it appears to be settled that ‘habeas corpus * * * has become the proper remedy to attack collaterally a judgment of conviction which has been obtained in violation of fundamental constitutional rights.’ 34 Cal.2d page 327, 210 P.2d at page 16.

Appellant's petition is quite sketchy but it may be spelled out from it that the public defender through an assistant contrary to appellant's expressed wish waived a jury trial and consented to the exclusion of the public from the trial and failed to produce witnesses (neither the names of whon nor what they would have testified to being set out in the petition) suggested by appellant. If these facts if proved would entitle petitioner to any relief especially at this late date, People v. Adamson, supra, makes clear that that relief must be sought by habeas corpus and not by coram nobis.

Order affirmed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.