PEOPLE v. BLEVINS (1963)

The defendant has filed a petition for rehearing raising for the first time a new point, namely, that he was not afforded an alleged constitutional right for the appointment of an attorney to represent him in the coram nobis proceedings in the court below, with the collateral argument that if counsel had been appointed he would have been enabled to file a better petition than he did. As these contentions were not previously made either in the lower court or on the appeal, the petitioner has no right to urge these points in the petition for rehearing. (Prince v. Hill, 170 Cal. 193, 195, 149 P. 578; A. F. Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767, 771, 177 P. 848; Estate of Novotny, 94 Cal.App. 782, 790, 271 P. 923, 273 P. 58; Mann v. Brison, 120 Cal.App. 450, 452, 7 P.2d 1110, 9 P.2d 257; Estate of Edwards, 126 Cal.App. 152, 157, 14 P.2d 318, 15 P.2d 194; Conner v. East Bay Mun. Utility Dist., 8 Cal.App.2d 613, 619, 47 P.2d 774, 48 P.2d 982; Ocean Park Pier Amusement Corp. v. Santa Monica, 40 Cal.App.2d 76, 87, 104 P.2d 668; Epperson v. Rosemond, 100 Cal.App.2d 344, 347–348, 223 P.2d 655, 224 P.2d 480; Smith v. Crocker Nat. Bank, 152 Cal.App.2d 832, 836–837, 314 P.2d 237.) Furthermore, the record does not show that petitioner applied to the trial court for the appointment of an attorney.

But even assuming, arguendo, that petitioner would be in a position to raise the question, it does not appear that the holding would necessarily be favorable to him. In People v. Fowler, 175 Cal.App.2d 808, 810, 346 P.2d 792, 794, the basic question involved was answered as follows:

‘Was defendant deprived of constitutional rights in that he was denied the aid of counsel in this proceeding and was not present or represented at the hearing? No.

‘Article 1, section 13, of the Constitution, provides in part that in criminal prosecutions the accused shall have the right to appear and defend with counsel. Obviously a coram nobis proceeding is not a criminal prosecution to which the fundamental constitutional rights to counsel apply. ‘* * * a motion in the nature of a writ of error coram nobis is a civil proceeding.’ People v. Stinchcomb, 1949, 92 Cal.App.2d 741, 742, 208 P.2d 396, 397. Whether or not a defendant should have been allowed to appear in person was a matter within the discretion of the court. People v. Gennaitte, 1954, 127 Cal.App.2d 544, 549, 274 P.2d 169.'

The opinion in Douglas v. People of California, 372 U.S. 353, 83 S.Ct. 814, 816, 9 L.Ed.2d 811, expressly reserves the question as follows:

‘We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal. Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeals had sustained his conviction (see Cal.Const., Art. VI, § 4c; Cal.Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563; Griffin v. Illinois, supra, [351 U.S. 12,] p. 18, 76 S.Ct. [585], p. 590, [100 L.Ed. 891.] Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163.'

In at least one case decided after Douglas v. California, supra, People v. Miller, 219 Cal.App.2d 124, 32 Cal.Rptr. 660, the First District Court of Appeal, Division 3, refused to grant the request by a petitioner for a writ of error coram nobis for the appointment of counsel even on appeal.

The petition for rehearing is denied.

CONLEY, Presiding Justice.