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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Jene ALLENTHORP, Defendant and Appellant.

Cr. 2323.

Decided: October 20, 1965

Robert Jene Allenthorp, in pro. per. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

Defendant appeals from an order of the superior court denying a motion to vacate a judgment and enter a reversal of judgment of the municipal court.

Questions Presented

1. Should the application have been made to the appellate department of the superior court?

2. Did the application state facts sufficient to entitle defendant to relief in coram nobis?


Defendant was convicted by a jury of petty theft in the Municipal Court, Anaheim-Fullerton Judicial District. He appealed to the Superior Court of Orange County and the appellate division of that court below affirmed the conviction. After the judgment had been remitted to the court below defendant filed in the superior court this motion which that court properly treated as a proceeding in the nature of an application for a writ of coram nobis.

The superior court denied the application

1. Jurisdiction.

The Attorney General, citing Section 1265, of the Penal Code contends that the court properly denied the application primarily because it lacked jurisdiction; that the application should have been made to the appellate department of the superior court rather than to the superior court itself.

Section 1265 in pertinent part, reads:

‘* * * if a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of said judgment, except in the court which affirmed the judgment on appeal.’ [Emphasis added.]

The Attorney General contends that this means that the application for relief must be made to the appellate department of the superior court and not to the superior court itself. We do not agree. The appellate department is a part of the superior court and not a court separate from it. It has only appellate jurisdiction and has no original jurisdiction.

In Thomasian v. Superior Court (1953), 122 Cal.App.2d 322, 265 P.2d 165 a petition for writ of review of certain orders of the municipal court was filed in the superior court. A judge of that court who was also a judge of the appellate department thereof, issued an alternatie writ returnable before the appellate department. After a hearing that department granted a peremptory writ annulling the orders of the municipal court. Thereafter, a petition for writ of mandamus was filed in the district court of appeal to annul the judgment of the appellate department of the superior court and to order the superior court (not the appellate department thereof) to assume jurisdiction over the original proceeding for writ of review of the municipal court's orders.

The court said:

‘Although each of the judges assigned to an appellate department, just as any other judges of the superior court, may exercise the general powers of the court, it would not seem competent for them in their appellate department capacity to entertain and act upon an original proceeding, as was done in the instant case. The fact that the proceeding in which they thus acted was the review of a municipal court order did not make it any the less an original proceeding than if it had been a criminal action instituted by indictment or information in the superior court or the trial of a civil action instituted by complaint in the superior court and in no way connected with or bearing upon any judgment or order of the municipal court.’ [Id. at p. 333, 265 P.2d 170.]

The appellate department's jurisdiction being limited to appeals it would have no power to consider this original proceeding, and the ‘court which affirmed the judgment’ referred to in section 1265 of the Penal Code necessarily means the superior court of which the appellate department is a part.

The superior court, having jurisdiction of the application, it becomes necessary to determine whether the application stated facts sufficient to afford relief in coram nobis.

2. The application was insufficient.

The grounds set forth in the application follows:

1. The trial interpreter was not sworn.

2. The evidence was insufficient to support the judgment.

3. Part of the evidence was obtained by an illegal search and seizure.

4. Defendant was not advised of his right to counsel and to remain silent while being interrogated by the police.

5. Lack of impartial trial due to newspaper coverage linking him to the offense and other unproved vandalism and thefts.

Obviously, every ground set forth could have been presented at the trial and raised on appeal. No attempt was made to show that any of these matters were not known to the defendant at those times, nor were newly discovered. [The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment; (2) petitioner must also show that the newly discovered evidence does not go to the merits of issues tried, and (3) petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.] (People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rtpr. 1, 397 P.2d 993; People v. Shorts, (1948) 32 Cal.2d 502, 512–513, 197 P.2d 330.) Defendant's application meets none of these requirements.

As to defendant's claim that he was attempting to show a denial at the trial of his constitutional rights (even these could have been raised on appeal), it is well settled that ‘Coram Nobis is not the proper vehicle for vindicating constitutional rights.’ (People v. Ayala (1935), 138 Cal.App.2d 243, 246, 291 P.2d 517, 519; People v. Del Campo (1959), 174 Cal.App.2d 217, 220, 344 P.2d 339.)

Order affirmed.

BRAY, Justice.

GERALD BROWN, P. J., and COUGHLIN, J., concur.

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Docket No: Cr. 2323.

Decided: October 20, 1965

Court: District Court of Appeal, Fourth District, California.

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