Edwards v. People , 99 Cal. App. 2d 216 ( 1950 )

ADAMS, P. J.

In October, 1947, appellant and one McConnell were charged with robbery committed in San Joaquin County. Edwards was also charged with two priors which he admitted. After the conviction of both defendants Edwards was adjudged to be an habitual criminal. Both defendants appealed and the judgments were affirmed by this court (People v. McConnell, 86 Cal.App.2d 578 [195 P.2d 34]). Thereafter Edwards in numerous proceedings sought to secure relief. He made various applications to the Superior Court of Sacramento County, to the Supreme Court of California, to the United States Supreme Court and to this court, all of which were denied.

In August, 1949, the present action was initiated in the Superior Court of San Joaquin County by the filing of a petition for a writ of error coram nolis. That court held a hearing thereon, at which evidence was presented. On November 1, 1949, the writ was denied. This appeal was taken from the judgment in that proceeding.

Respondent has filed herein a motion to dismiss said appeal on the ground that it is without merit and frivolous. Both the appeal on its merits and said motion to dismiss are now before us.

The limitations of the scope of review by writ of error coram nobis have been definitely fixed in several recent decisions of our California Supreme Court, which have been followed by decisions of this court. (In re Lindley, 29 Cal.2d 709, 725-726 [177 P.2d 918]; People v. Tuthill, 32 Cal.2d 819, 821 [198 P.2d 505] ; People v. Shorts, 32 Cal.2d 502, 513 [197 P.2d 330]; People v. Adamson, 34 Cal.2d 320, 326 [210 P.2d 13]; People v. Malone, 96 Cal.App.2d 270, 272 [215 P.2d 109] ; People v. Chapman, 96 Cal.App.2d 668, 670 [216 P.2d 112].) In both the Malone and Chapman eases motions for dismissal of the appeals, which had been taken from orders denying writs of error coram nobis, were granted.

Such must be the order in this case since the matters relied upon by appellant are such as were or could have been presented on his appeal from his judgment of conviction, or were presented in his former petitions for writs that were denied. Appellant’s petition to the Superior Court of San Joaquin County alleges no fact which was unknown to him at his original trial, or could not, in the exercise of due diligence have been discovered by him at any time earlier than the time when his petition for the writ was filed in this proceeding. The record before us presents no grounds for review by way of writ of error coram nobis, nor any matter reviewable by appeal from the decision of the trial court. The appeal appearing to be frivolous and without merit it is hereby dismissed.

Van Dyke, J., and Peek, J., concurred.

A petition for a rehearing was denied September 8, 1950.