PEOPLE v. PAINTER (1962)

Appellant originally filed in propria persona, in the Fresno Superior Court a motion to vacate a ‘void’ judgment on November 21, 1961, having pled ‘guilty’ on July 10, 1961, to an information charging him with grand theft, automobile, a violation of Penal Code section 487, subdivision 3. Subsequent thereto, after a probation report, he was sentenced on July 24, 1961, to the term prescribed by law.

The record, which this court ordered augmented to include all of the proceedings taken, indicates that the appellant and one Michael Espinosa were charged with stealing an automobile and the Espinosa took the automobile from a parking lot and picked up appellant on a nearby highway where he was waiting, and they were shortly thereafter arrested for car theft.

A preliminary examination was held on June 30, 1961. The defendants were personally present without counsel and the court stated, ‘You have been informed of your rights to an attorney at all stages of the proceedings. Anything taken down in this court can be used against you in the Superior Court later on if they want to. But you're going to plead guilty anyway, is that right?’ to which both defendants answered, ‘Yes.’ The appellant took the stand and testified that he and the other defendant were together on the day involved and decided to go to Los Angeles, but not having a car, they planned to take someone else's car, and that Espinosa was going to pick up the car and meet appellant by Highway 99 freeway. When Espinosa drove up in the car appellant got into it and they were later arrested.

Prior to the preliminary, on June 20th, appellant gave a statement to the deputy district attorney in which appellant stated that he had not received any promises about reducing the charges or any promise of leniency.

At the arraignment on July 10th, according to the clerk's records, the appellant was advised of his rights and waived the appointment of counsel, and pled guilty. On that same day an attorney was appointed as counsel for defendant Espinosa who also pled guilty.

The probation report recites appellant's statement that he was joy-riding and it was also reported that appellant requested arresting officers to charge him with joyriding and he would plead guilty to the charge.

Thereafter, on November 21, 1961, appellant, while in Folsom prison, made a motion to vacate a ‘void’ judgment in which he stated that his plea of guilty was obtained by fraud, deceit, intimidation and false promises and the mistaken belief, on which he relied, in the false promise of the district attorney that he would receive only a jail sentence. This we consider as a writ of coram nobis. This motion was filed with the clerk on November 24, 1961. In due time the motion came up for hearing and on December 28th the court appointed attorney Okawara to represent appellant. The matter was again continued from time to time. Affidavits were received from the appellant and the district attorney, and on January 23, 1962, the matter was taken under advisement. On March 21, 1962, the court made its order denying the motion ‘on the ground that the motion was not timely filed.’ The appellant filed his notice of appeal on March 27, 1962.

While appellant filed his motions, affidavit and briefs in propria persona, this court reappointed appellant's former attorney, Mr. Okawara, to represent him. Appellant was no doubt assisted by others in the prison and complains about many things which have nothing to do with such a motion as this. Without merit are his views that he should have had a jury trial in spite of his plea of guilty (People v. Evans, 185 Cal.App.2d 331, 8 Cal.Rptr. 410; People v. Lewis, 166 Cal.App.2d 602, 333 P.2d 428; 14 Cal.Jur.2d, § 247, p. 492); that the judge's decision was not made within 90 days (submitted January 23, 1962, and motion denied March 21, 1962); that this motion was made under Code of Civil Procedure section 473 (which it is not); and that his motion was renamed a motion for writ of coram nobis without his consent.

A motion to vacate the judgment and motions for a writ of coram nobis or of coram vobis are all the same (People v. Dowding, 185 Cal.App.2d 274, 8 Cal.Rptr. 208; People v. Lewis, 157 Cal.App.2d 722, 321 P.2d 859; In re Lindley, 29 Cal.2d 709, 726, 177 P.2d 918; People v. Harincar, 49 Cal.App.2d 594, 595–596, 121 P.2d 751; People v. Vernon, 9 Cal.App.2d 138, 49 P.2d 326).

Appellant also complains that in the information he was charged with violation of Penal Code section 487, subdivision 3, which covers grand theft of an automobile. It is his mistaken belief that there are still two degrees of theft, grand and petty, as far as automobiles are concerned (Pen.Code, § 486); and implied that he should have been charged under Penal Code section 1426 (which was repealed in 1951); and that there was no evaluation of the automobile in the information to show that it exceeded $200, which is only required in section 487, subdivision 1.

Appellant did not move for a new trial nor appeal from the judgment and many of the things that he complains of are matters which could have been heard on such an appeal.

An order of the court denying the motion on the grounds of its not being timely filed was mistakenly considered by the appellant only from the standpoint that he believed it was a motion under Code of Civil Procedure section 473 and that he had filed his motion within six months and also that this section is unconstitutional and contrary to federal laws (28 U.S.C. § 2255). A motion under this section does not apply to criminal matters but only to civil matters (Gonzales v. Superior Court, 3 Cal.2d 260, 44 P.2d 320). The brief of the Attorney General does not discuss this phase but at oral argument the deputy Attorney General stated that the motion or application should have been made in even a shorter time than the present 4 months.

Without discussing the merits of the claim of the appellant that he was promised a joyriding jail sentence if he pled guilty as set forth in the affidavits of the appellant and the affidavits of the district attorney, we find that the order denying the motion was improper and that the motion was timely filed.

Each case must be considered by its own particular circumstances and in general, there is no specific time limit for a writ of coram nobis. A delay of 20 years has been held to be unreasonable (People v. Lewis, 72 Cal.App.2d 318, 164 P.2d 295); 18 years (People v. Chapman, 106 Cal.App.2d 51, 234 P.2d 716); 5 years (People v. Baker, 92 Cal.App.2d 623, 207 P.2d 58; People v. Harincar, 49 Cal.App.2d 594, 121 P.2d 571); 4 years (People v. Coates, 95 Cal.App.2d 78, 212 P.2d 263; People v. Ryan, 121 Cal.App.2d 651, 263 P.2d 850); and even 8 months (People v. Krout, 90 Cal.App.2d 205, 202 P.2d 635).

In the present case there is no doubt that the appellant knew of the facts from the beginning upon which he relies for relief but we believe that he exercise due diligence in filing him petition as soon as possible and that it was timely filed. In the superior court file we find an unsigned statement by appellant dated December 13, 1961, that he filed his present motion within a period of 5 days after he received his legal papers from the prison authorities. Also attached was an exhibit of the medical facility at Vacaville showing that he had executed a receipt dated July 25, 1961, to that authority for his personal property which consisted of legal papers, which receipt was signed by the Receiving Officer at the prison.

In his statement to Judge Thompson the appellant attributed any delay in the filing of his petition to the state officials. It would appear that his being first sent to Vacaville and subsequently to Repressa (Folsom prison) and his difficulty in getting his papers necessary to file such a motion is not the fault of appellant and that he has done everything that he could do diligently to present this matter to the court, and that it was an error of the lower court to deny his motion on the grounds that it had not been timely filed.

The motion was not heard or decided on the merits. In People v. Odlum, 91 Cal.App.2d 761, 205 P.2d 1106, the learned judge therein misconceived the theory of this type of a proceeding. While in the Odlum case there was a stipulation by the Attorney General that the matter could be heard on its merits with regard to the type of application on file, there was no stipulation in our present action by both parties that this court could hear and determine the motion on its merits. In fact, from the reporter's transcript, there appears to be no attempt to consider the matter on its merits, but on the timeliness.

People v. Perez, 9 Cal.App. 265, at page 266, 98 P. 870 at page 871 states, ‘* * * it is clear that the proper procedure is by motion supported by documentary or oral evidence, or both.’ See also People v. Silver, 154 Cal. 556, 98 P. 543, and People v. Block, 134 Cal.App. 217, 25 P.2d 242.

‘* * * while the court may hear oral evidence in a coram nobis proceeding, the petitioner may not successfully contend that he has a legal right to the introduction of such evidence.’ (12 Cal.Jur.2d, Coram Nobis, § 24, p. 574.)

Appellant complains that the court erred in ruling on the admission of evidence, but in examining the transcript we find that there was no offer of any oral evidence, and while there was some uncertainty by the court as to whether or not it could receive testimony in the form of an affidavit, there is no doubt but that the affidavits may be received and made a part of the record.

We think that the appellant was diligent and timely in filing his petition within 4 months from the judgment and no statement of facts is required as to any reason for this short delay, particularly when he is in prison and has certain obvious limitations in acting as his own attorney. While the granting of a writ of error coram nobis is discretionary (People v. Evans, supra, 185 Cal.App.2d 331, 8 Cal.Rptr. 410), we think that the denial by the court on the ground that it was not timely filed was erroneous and that the court should have acted on the merits (People v. Devora, 105 Cal.App.2d 457, 463, 233 P.2d 653).

Applications for such writs, the facts upon which reliance is based, whether known at the time of judgment or afterwards discovered, and other remedies by appeal or motion for new trial are thoroughly discussed in the following cases: People v. Egan, 73 Cal.App.2d 894, 167 P.2d 766; People v. Lewis, 166 Cal.App.2d 602, 333 P.2d 428; People v. Reid, 195 Cal. 249, 232 P. 457, 36 A.L.R. 1435; People v. Shorts, 32 Cal.2d 502, 197 P.2d 330; People v. Harincar, 49 Cal.App.2d 594, 121 P.2d 751; People v. Bible, 135 Cal.App.2d 65, 286 P.2d 524; People v. Johnson, 175 Cal.App.2d 290, 345 P.2d 952; People v. Flores, 147 Cal.App.2d 243, 305 P.2d 90; and People v. Blalock, 53 Cal.2d 798, 3 Cal.Rptr. 137, 349 P.2d 953.

It is our conclusion that the judgment of the lower court be reversed and the cause remanded for a new hearing on the merits of the petition, if any, to determine whether the judgment and plea of guilty should be vacated. There the lower court may determine the matter as to the conflict in the affidavits and in its discretion decide whether or not it desires to hear oral evidence and whether the application for writ of coram nobis meets the required tests.

BROWN, Justice.

CONLEY, P. J., and STONE, J., concur.