People v. Lewis

157 Cal. App. 2d 722 (1958)

THE PEOPLE, Respondent,
v.
ROBERT BILLS LEWIS, Appellant.

Crim. No. 6112.

California Court of Appeals. Second Dist., Div. One.

Feb. 20, 1958.

Robert Bills Lewis, in pro. per., for Appellant.

No appearance for Respondent.

THE COURT.

Appellant was convicted in the Superior Court in and for the County of Los Angeles of the crimes of burglary of the first degree and assault with a deadly weapon. Four prior felony convictions charged against him were found to be true. On May 7, 1957, appellant was sentenced to state prison. Thereafter, on August 22, 1957, he filed in the Superior Court of Los Angeles County a document denominated "Motion to Annul, Vacate and Set Aside Judgment." On August 28, 1957, the court entered its order as follows: "Petition for Writ of Error Coram Nobis is denied." From such order appellant filed his appeal to this court.

On January 31, 1958, appellant filed in this court his "Motion for abandonment of appeal for limited purpose."

In support of such motion appellant asserts "that his motion to annul, vacate and set aside judgment was not intended to be a petition for a writ of Error Coram Nobis, and that by the trial judge entitling it to be a petition for a writ of Error Coram Nobis, deprives him of that remedy, when in fact, the motion as presented, did not fulfill those requirements as prescribed by statute and law for the filing of the petition for a writ of Error Coram Nobis."

Appellant then states that he "now wishes to abandon the appeal so that he may file a properly executed petition for a writ of Error Coram Nobis under the requirements of law and rules thereon; or, in the alternative, that an order issue allowing the appeal to stand as an appeal from a denial of a motion to annual, vacate and set aside the judgment rather than an appeal from the denial of a petition for a writ of Error Coram Nobis."

[1] This contention that his application to the court below was mistakenly treated as a petition for writ of error coram nobis appellant is in error because, in this state a motion such as appellant herein made in the superior court to vacate a judgment in a criminal case is a proceeding in the nature of an application for a writ of error coram nobis (People v. Jones, 155 Cal. App. 2d 149, 151 [317 P.2d 108]). The grounds stated by appellant in his motion to the superior court and from the denial of which he now appeals, makes such motion the equivalent of a proceeding in the nature of a writ of error coram nobis.

The motion of appellant to abandon his appeal "for limited purpose" is therefore denied.