PEOPLE v. SUAREZ (1956)

Appellant Suarez appeals from an order of the superior court denying his petition for a writ of error coram nobis and gave notice of appeal from the judgment. He was convicted October 7, 1954 of the possession of heroin and he was charged with having suffered two prior felony convictions. He was represented by counsel at the trial, which was to a jury; he admitted the prior convictions and was convicted and sentenced to state prison. No appeal was taken from the judgment within 10 days as required by Rule 31, Rules on Appeal. October 25, 1955 appellant filed with the superior court a petition seeking vacation of the judgment. The petition was denied. It was alleged in the petition that when defendant was arrested the officers used brutal force upon him and ‘petitioner was brutally restrained and handled until the alleged narcotic was illegally taken from him.’ The court was not required to believe these vague, general allegations, nor were they sufficient, even if true, to invalidate the judgment.

In order to present a meritorious application for vacation of a judgment there must be a strong showing of the existence of some fact which was unknown to the petitioner 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. (12 Cal.Jur.2d, Coram Nobis p. 550.) The facts alleged were manifestly insufficient to justify a disturbance of the judgment and the petition was properly denied. The petition was filed with the court one day and was denied the next day. It is asserted on the appeal that the denial was made in a summary manner and without due consideration. There is no merit in this claim.

The order is affirmed. The notice of appeal from the judgment was filed more than one year after judgment was rendered. Not having been filed within 10 days it was ineffectual and the purported appeal is dismissed.

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.