PEOPLE v. KROUT

WOOD, J.

On October 2, 1947, defendant was adjudged guilty of forgery in three counts. He did not make a motion for a new trial (unless this proceeding be regarded as such a motion). He did not appeal from the judgment, sentencing him to the penitentiary, which was pronounced on October 22, 1947.

After he had been in the penitentiary about 8 months, he filed a petition for a writ of error coram nobis. He appealed from the order of the trial court denying that petition. The order was affirmed on February 16, 1949. ( People v. Krout, 90 Cal.App.2d 205 [ 202 P.2d 635].)

On August 12, 1949, he filed a "Petition for a New Trial." This is an appeal from the order denying that petition.

[1, 2] Appellant asserts (1) that a conspiracy existed between his counsel (a deputy public defender) and a deputy district attorney, and that they "tricked" him into waiving his right to a jury trial; (2) that they told him that if he would agree to a court trial his counsel would ask for, and the deputy district attorney would agree to, a dismissal; (3) that he did not have a fair trial because they presented the case upon the transcript of the preliminary examination without his knowledge or consent; (4) that his counsel did not subpoena available witnesses and did not obtain available records; and (5) there was no evidence of intent to defraud.

If the petition now before the court be regarded as a motion for a new trial, it was filed too late and cannot be considered. It was filed about one and three-fourths years after judgment. A motion for a new trial must be made before judgment is pronounced. (Pen. Code, § 1182; People v. Fry, 137 Cal.App. 525, 529 [ 31 P.2d 204].)

If the petition be regarded as a petition for a writ of error coram nobis, it appears that all the alleged points above mentioned, upon which the petition is based, except the one that appellant did not have a fair trial because the case was presented upon the preliminary transcript, were included in the said former proceeding for a writ of error coram nobis. Appellant is not entitled to have said matters, which were decided therein, reconsidered in this proceeding.

Appellant's contention that he did not have a fair trial because the case was presented upon the preliminary transcript could have been considered on a proper and timely motion for a new trial and on an appeal from the judgment of conviction. As above stated, appellant did not make such a motion for a new trial and he did not appeal from such judgment. Where a defendant's contention could have been presented on a motion for a new trial or on an appeal from a judgment, and he has failed to avail himself of either remedy, a writ of error coram nobis will not be entertained to review the alleged error. ( People v. Watkins, 92 Cal.App.2d 375, 376 [ 206 P.2d 1118].) Therefore, even if this present proceeding be regarded as a coram nobis proceeding, the contention of appellant that error was committed in presenting the case on the preliminary transcript cannot be considered herein.

The order denying the "Petition for a New Trial" is affirmed.

Shinn, P.J., and Vallee, J., concurred.