PEOPLE v. BLEVINS (1963)

On May 3, 1963, the defendant-appellant, Tom James Blevins, and defendant Morrow, inpropria persona, filed a motion to set aside and vacate judgment and petition for writ of error coram nobis in forma pauperis. The motion and petition were denied, from which order both defendants, again in propria persona, appealed. At the request of defendants filed with their opening brief, this court appointed George C. Coleman to represent them on this appeal; thereafter defendant Morrow filed an abandonment of appeal and the appeal as to Morrow only was dismissed by this court.

This matter results from an indictment by the Grand Jury charging the two defendants with murder. During all proceedings in the lower court defendant Morrow was represented by an able attorney and the appellant was represented by the experienced public defender. Defendants subsequently, on November 28, 1962, pled guilty to murder in the second degree.

Briefly, defendant Morrow and his wife had filed a complaint charging James Phillips and Pola Phillips (later deceased) with assault and robbery as a result of an altercation which had taken place sometime prior thereto; the Phillipses were arrested and later released. Thereafter, the Morrows complained to the police that they were not being protected, and Morrow, taking the law into his own hands, went with appellant Blevins to the Phillips' house to discourage any further assaults by the Phillipses. While at the Phillips' house Morrow picked up a piece of wood and struck Pola Phillips who succumbed a few hours later from an internal injury.

Appellant's general contentions are that by being charged with murder and the possibility of the gas chamber he was thus under duress and coercion and induced to plead guilty; that he failed to receive needed medical treatment; and that he, with Morrow, received incorrect advice from their attorneys.

The court properly denied the appellant's petition for a writ of error coram nobis. The petition was not timely filed, and appellant cites no facts which were not known to him at the time of trial or could not have been known to him by diligent efforts; such facts should have been called to the attention of the trial court at the time of trial and cannot be raised for the first time by means of a writ of error coram nobis. (People v. Painter, 214 Cal.App.2d 93, 97, 29 Cal.Rptr. 121.) It was said in the Painter case, 214 Cal.App.2d at page 97, 29 Cal.Rptr. at page 123:

‘And in People v. Shorts, supra, 32 Cal.2d 502, 513, 197 P.2d 330, 336, the court said that an applicant for the writ ‘* * * must show that the facts upon which he relies were not known to him and could not in exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ; otherwise he has stated no ground for relief.’ (People v. Adamson, 34 Cal.2d 320, 327, 210 P.2d 13; People v. Slater, 152 Cal.App.2d 814, 816–817, 313 P.2d 111.)'

With reference to the claim of appellant's being denied sufficient food and medical attention while in the county jail awaiting trial, the court in People v. O'Connor, 114 Cal.App.2d 723, at page 726, 251 P.2d 64, at page 66, held that coram nobis was not available on this ground because ‘[a]ll the facts above indicated, even if true, must have been known to defendant at the time the entered his plea of guilty.’

Appellant relies on the denial of effective aid of counsel. The record shows that before the pleas were entered the appellant and Morrow consulted with their attorneys. Coram nobis is not available to the claim of denial of effective aid of counsel. (People v. Mendez, 144 Cal.App.2d 500, 503, 301 P.2d 295.)

The appellant claims that through his attorney and Morrow's attorney it was implied that the district attorney was assuring them of a lenient sentence, and yet, at the same time the appellant maintains that the charge of murder which carries with it the possibility of death in the gas chamber constitutes duress and coercion. This contention is without merit and is clearly answered in People v. Hodge, 147 Cal.App.2d 591, 593–594, 305 P.2d 957, 960, as follows:

‘Appellant also contends that the district attorney threatened to seek the death penalty if appellant refused to plead guilty. Of course, the filing of the complaint and information charging murder in the first degree carried with it the clearly implied threat of the death penalty. Assuming a direct threat by the prosecutor to seek the greater penalty, there is no proper ground for setting aside the plea. People v. Toledo, 111 Cal.App. 204, at page 208, 295 P. 353, at page 355, where the court expresses ‘serious doubt as to whether a statement by a district attorney that he contemplates doing his duty may ever be considered as duress.’'

However, it must be noted that the appellant did receive a lesser sentence in the judgment of second degree murder.

Appellant has set forth no facts with regard to his constitutional rights being invaded.

“The application should make a full disclosure of the specific facts relied upon and not merely state conclusions as to the nature and effect of such facts.' People v. Stapleton, 139 Cal.App.2d 512 [513–514], 293 P.2d 793, 794.' (People v. Mendez, supra, 144 Cal.App.2d 500, 503–504, 301 P.2d 295, 298.)

The trial court's denial of the writ of error coram nobis is completely within its discretion and cannot be reversed except on a clear showing of an abuse of that discretion. (People v. Evans, 185 Cal.App.2d 331, 333, 8 Cal.Rptr. 410; People v. Mendez, supra, 144 Cal.App.2d p. 504, 301 P.2d p. 298.)

It is further clear that the court need not believe all the allegations or affidavits even if they are uncontradicted. (People v. Tannehill, 193 Cal.App.2d 701, 705, 14 Cal.Rptr. 615; People v. Martinelli, 118 Cal.App.2d 94, 98, 257 P.2d 37.)

In conclusion, the appellant has set forth no allegations which can be presented on coram nobis. All of the facts and claims alleged by the appellant were known by him at the time the plea was made and he was adequately represented by counsel and has raised no matters which were not so known to him at time of trial.

The order is affirmed.

RALPH M. BROWN, Justice.

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