*1 Sept. No. Bank. 1973.] [Crim.
In re RAY EDWARD BENOIT on Habeas Corpus. Sept. No. 16627. In Bank. 1973.]
[Crim.
In re WYCKOFF RICHARD on Habeas Corpus.
Counsel Fetros, Court,
Peter G. under for Petitioners. appointment Supreme Jr., General, Hinz, J. Evelle Edward A. Chief Assistant Attorney Younger, General, Maier, General, Doris H. Willard Assistant Attorney Attorney Jones, Just, F. David M. and Charles P. Gen- Blackman Attorneys Deputy eral, for Respondent.
Opinion each in habeas SULLIVAN, corpus peti J. In these separate proceedings construc the that he took an tioner seeks determination under of conviction tive of notice of judgment directed to the each case he show cause in is held. We issued an order to (Director) Peter of Corrections Director of appointed Department Fetros, common each cases G. Since both present represent petitioner. issue we consider them together. of con- under a
Petitioner Edward Benoit Ray judgment imprisoned Code, (Pen. officer viction of assault with a on a deadly weapon police aon (b)) County subd. entered Court of Shasta § Superior sentence, 14, 1972,1 verdict. On after jury February imposing Rules of Court.2 advised in accordance with rule California petitioner *4 At that the time occurred: following colloquy file a Notice . no attorney, . . and if have you
“The Court: an to the District Court of will repre- Appeal, Appeals appoint one, be Redmon sent even if can’t afford of course. It will not Mr. you, you at the Defender], it be other attorney Public will some County [Shasta Redmon, assume, have District Court of and I Mr. you explained Appeals, these to your— rights Well,
“Mr. Redmon: I was it with him just discussing (Interposing) now, Honor, and what I your will do is make available for tomorrow— For the Notice of
“The Court: (Interposing) Appeal?
“Mr. Redmon: Yes.
“The Court: All .. .” right. affidavit,3 Mr. Redmon never filed a attached His degree by judgment 1Benoit is also held under a murder entered of second Superior Monterey County jury imposed Court on a verdict. The court sentence on June present proceeding. 1972. This conviction is not at issue in the making 2Rule 250 an order to be a provides: imposing “After sentence or deemed trial, judgment advise final in a case the court shall criminal conviction after right judgment, necessary steps and the defendant of his from the of the indigent time for to have counsel of an by reviewing reporter’s proceedings required appointed transcript court. A prepared reporter this rule shall and filed with be forthwith certified the clerk.” Hereafter, indicated, are to the California Rules unless otherwise all rule references of Court. to .the argument respective stipulated parties 3At oral before counsel for the us (a) following in record: made in documents truth of the statements cause, to the states in Director’s order to show part: return pertinent he had . . At that advised Mr. Benoit that time I sentencing] [time he should basis for an but that my delay filing opinion, California, to stand to be to Monterey County, as he was taken trial on best interests to concentrate a murder and it was in his charge Defender, County, Monterey on Mr. David Goyne, Public assisting Deputy in his defense of the murder charge. assumed, “I that a Notice Appeal Mr. prepared Benoit would be Salinas, California, by County Defender, the Monterey Public but I
cannot I honestly say that advised Mr. Benoit to have prepare that office the Notice Appeal.” (Italics added.)
Petitioner Benoit was thereafter delivered Sheriff of Shasta County to the authorities of where he appropriate County Monterey appeared answer court to fn. superior (see him against charges pending ante). In those he was David M. proceedings, Goyne, represented affidavit, deputy defender. which is public Goyne’s Mr. According writ, attached to the for the Goyne informed Mr. petition petitioner the conviction in Shasta of his intention take an County His affidavit continues “Mr. Benoit he had judgment. told me thusly: been sentenced on February [actually February 1972]. I can recall Mr. Redmon’s office in least one occasion calling Redding *5 after that office conversation with Mr. Benoit. Mr. Redmon was not in the time, at that his but I asked if the were filed secretary giving papers being papers secretary assured me the in Mr. Benoit’s case. The appeal being processed were were somewhere on her I did at that time desk. not Mr. ask the if Mr. Redmon was secretary specifically representing matter, Benoit the affidavit Goyne, of David a Deputy M. Public of Defender Monterey County, writ; attached to petition, Joseph for the and the affidavit of Redmon, H. the Public Defender County, of Shasta attached to re- the Director’s (b) Wyckoff matter, 10, turn. August the letter dated Robert by written Rounds, petitioner’s court-appointed counsel in his criminal case. 4The affidavit states: “When I spoke my Ray during California, client Mr. Benoit March, 1972, first week Redding, after he returned Salinas Mr; being Redding Code, after convicted in § of a violation of Benoit Penal told me at that time he intended appeal that that verdict. Mr. Benoit further told me that Redmon, Redding before Redding, Joseph he had left had he told his in Mr. appeal. to file notice Mr. Benoit said Mr. Redmon informed him he would ‘check I it out’ first. assumed Red from that statement and from the fact Mr. strong mon had expressed charge me a conviction had a Mr. Benoit defense that that contemplated Mr. Redmon representing Benoit on the for that appeal Mr. Instead, reason I did prepare appeal not Mr. Benoit’s notice of for him. I asked Mr. sentenced, Benoit keep when he had been no so I could track of the date so that if notice were filed prepare Mr. Redmon for I could notice some reason Mr. Benoit’s appeal for him in time.” Red- nor Mr. However, secretary neither Mr. Redmon’s Benoit on appeal. way assist in mon, recollection, any at time to ever asked me any to my the week ... During notice Redding. MI] appeal 24, 1972, called the Shasta I of April approached April in Mr. Benoit’s had been Clerk and learned no notice County lodged Mr. Benoit to I, therefore, such a notice for case. immediately prepared Clerk County to the Shasta and mailed the notice once sign signed case number his which notice Mr. Benoit filed added.) (Italics Shasta County.”
The Clerk filed the notice County prepared Shasta However, Third the Clerk of the Court of Appel record on Appeal, court, District, returned the record direction of the late 24, 1972, thus after filed on because the notice of was April for the taking appeals of the 60-day period prescribed expiration seeks a Court), (rule 31(a), Rules of in criminal cases Cal. petitioner has been that, his such late filing, determination notwithstanding taken and is properly pending.
Petitioner Richard Wyckoff under a con- imprisoned judgment 10, 1972, viction entered March the San two Court for Diego Superior Rounds, offenses. unspecified Wyckoff Robert represented sentence, counsel. After the trial court court-appointed imposing properly advised of his petitioner to rule California rights pursuant (see Rules of Court ante). fn. At time the oc- following colloquy curred: “The Court: understand that you unless your lawyer present Do files an you have to file one? The Defendant: Yes.”
Petitioner Wyckoff that at that time he asked alleges Mr. Rounds to file *6 a notice of and that Mr. Rounds to do so but in fact appeal promised failed to do so in time. In a letter as to Wyckoff’s inquiries responding to the filed, notice why of had not been admitted that Mr. Rounds appeal he had to file a notice of that he had a of the notice promised copy 31(a), 1, 1972, January pro 5Rule as amended cases provides: effective “In the law, vided appeal by filing is with the clerk appeal taken written notice of making the superior days judgment of court within the or the after the rendition of pre appeal prior prescribed order. A notice of filed to the time therefor is cause, good as may, reviewing mature but the be treated in discretion of the court for immediately making filed the order. judgment after the rendition of the or the of superior court after appeal Whenever a notice of is received clerk of the the [¶] notice, it the clerk shall mark expiration period prescribed of such (date) seeking the notice that to file party ‘Received but not filed’ and advise the elapsed.” had appeal was received but not filed because the period filed, which he assumed had been filed and that it had been if not
it was due either to an inadvertence or to the loss of the document.6
The notice of was received in the office of the Clerk of actually 26, late, San on June it was 46 the clerk Diego County 1972. Since notice, “Received, filed,” marked the so but not and informed petitioner. District, made a Wyckoff motion in the Court of Fourth Appeal, Appellate One, Division for leave to file a late His was denied motion appeal. without In this seeks a that his opinion. determination proceeding petitioner is and that the record on should be pending prepared. observe at
We the start that the absence of another adequate “[i]n habeas lies to denial of 'a to remedy, correct erroneous corpus 756, (In an effective re Parker (1968) 68 Cal.2d Cal.Rptr. appeal” [69 65, 133, 905]; 441 P.2d see also In re Martin Cal.2d [23 103]; Byrnes (1945) 373 P.2d In re 26 Cal.2d 826- Cal.Rptr. also, 376]) lies to that an is determine pending re (In and to effect record so to preparation perfect 638, 639, 483], Gonsalves cited with (1957) 48 Cal.2d 641-642 In re in William M. approval Cal.Rptr. 737].) Petitioners contend that notwithstanding 1972 amendment of rule 31(a) which other among eliminated the things theretofore in procedure effect for relief from a granting failure to file a timely notice of appeal, this court has jurisdiction and discretion to order the of a notice received clerk of the court after the superior expiration the 60-day (see the rule period prescribed by ante). fn. The Director on the other hand contends that the 60-day period mandatory juris- letter, 6The full text of August Mr. Rounds’ dated peti 1972 and addressed tioner at (which the state at Represa petition) letter is attached to the is as follows: your vacation) “I received (fortunately, just letter leaving on before please enclosed copy your find a Appeal response Notice of case. In [¶] letter, questions your definitely your we discussed intention to matter, you correctly your state that this in the courtroom at the time of you sentencing. I Appeal that I would a Notice matter. Al informed file though my copy personal signature indicates a by yourself, and believe that I I had sign you definitely verify Notice of I Appeal, cannot that fact as I do not have the event, original. prepared Appeal any pursuant your request I the Notice [¶] definitely filed, and my intended it. it was not it would be due either to a error on If file courts, part or that Ordinarily, a loss the document in transit. these *7 of of Appeals Diego County are delivered to the Clerk at the San Our normal Pourthouse. procedure person by way is either to take a them there in or to forward them of event, definitely messenger any I I service. do not recall which method was In used. your you appeal prepared Appeal recall statement that wish to and a Notice of added.) pursuant (Italics to Hoping it. this will be of some assistance.”
79 extend this court is without to dictional that as a power and consequence a consideration of the the It will be to question time for filing. helpful of set at the start positions before us to forth length antipodal parties. People this court in runs as follows: In
The Director’s
argument
73],
affirmed
(1933)
long
Lewis
Cal.
413-414
as to
rule
holding
requirements
standing
unequivocally
“[t]he
in both
notices of
are mandatory
jurisdictional
time for filing
appeal
inadvertence
. . .
through
civil
criminal actions.
Where
[Citations.]
within the time
notice is not filed
or mistake of. a
or his
party
law,
can afford relief
trial court nor
court
limited
neither the
by
appellate
that time section
notice.
. . .’’At
tardy
thereafter
of
by
filing
permitting
either
could be taken
of the Penal
that an
Code specified
appeal
a written notice
or by filing
oral announcement at the time of
sentencing
remained without
courts
within two
after
The
judgment.
appellate
Campo
(In
re Del
late
until
to consider
jurisdiction
appeals
912].)7
In 1961—so argument 31(a) continues—rule Rules California Court, of which that a notice of specified in a criminal case must appeal be filed within 10 days after was amended to include judgment, provision for late v. Casillas filing.8 (1964) 61 Cal.2d 345-346 [38 521], Cal.Rptr. this court held that the amend “[u]nder 31(a) ments rule . . . the court has reviewing relieve a jurisdiction defendant from his failure to file a timely notice of . . . .” It was there out that pointed “The rule stated in cases such as v. Lewis , Cal. 410 ... to a court’s respect reviewing power afford relief the late of a notice of has been abrogated 31(a).” amendments rule (Id., 346.) court, fn. at2 This follow p. the direction ing in Casillas that “the courts under rule power reviewing 7“In requirements both civil and criminal cases the time for an a are mandatory, jurisdiction courts are without to consider Lewis, late (Estate Hanley, ; 122 . . . 219 Cal. .)” (In Campo, supra, . re Del . . Cal.2d at 31(a) 8Rule was amended to read: a notice is received “Whenever superior the clerk of the expiration period prescribed court after the for notice*, (date) the clerk shall mark it ‘Received not filed’ and such but advise seeking period to file party the notice that it was received but not filed because the may petition reviewing elapsed had and that he setting penalty perjury, verified statement forth the or declaration under relief date steps judgment or seeks to which party order from which the time, any party took to his notice other which information file has, has, party bearing upon the circumstances which caused believes added.) (Italics the notice to arrive late.”
80 (id. to loss of the 31(a) appeal” should exercised to avoid be liberally cases delineated circumstances 346) in a series of long warranted exercise of that power.9 1, 1972, 31(a) rule January that effective
The Director then emphasizes the time for filing to extend of Court was amended of the California Rules in the eliminate the and to provision from 10 to 60 after judgment file a failure to relief from courts to grant rule empowering appellate notice of timely appeal.10 arrives the Director argument,
After
foregoing progression
such relief
California
appellate
at this conclusion: Since
granting
31(a) as
read
such
in rule
the conferral of
courts rested
solely
power
Acosta, supra,
People v.
(see for
to its 1972 amendment
example
prior
344,
685,
(61 Cal.2d
683,
688) and since Casillas recognized
71 Cal.2d
had no juris-
courts
345-346,
such
2) that without
power appellate
fn.
a
notice
timely
to file
from his failure
relieve a defendant
diction to
Lewis,
410, 413-414),
the annulment
supra,
Cal.
(People v.
219
31(a) withdrew jurisdiction
to rule
amendment
of this
power
to consider late
courts
appeals.
Petitioners on the other hand concede that the
and effect of the
purpose
revision of rule 31(a)
has been to eliminate
for obtain-
procedure
relief from the failure to file a
ing
and that
the line of
timely appeal
general
9The
exercising
power
rules fashioned
this court
its
to relieve a
timely
defendant from failure to file a
notice of
are
v.
summarized
Acosta
ing
Cal.Rptr.
71 Cal.2d
687-688
“In exercis
136]:
power
its
granting
to
a
determine
circumstances which warrant
defendant
Casillas,
timely
(People
supra,
relief from his
Cal.2d
entitled to
to file
failure
a
notice of
v.
344)
following general
this court has established the
A defendant
rules:
relief,
grounds
estoppel,
timely
absent
for waiver or
where he makes a
request
attorney
thereby
attorney
of his trial
file
appeal,
placing
an
under a
it,
it,
duty to file
instruct defendant how to file
or secure other counsel for him
Camarillo,
(People
supra,
512];
Cal.Rptr.
v.
81 9, ante) is no (see decisions with Casillas fn. longer applicable. commencing restores with the Director that this amendment effectively They agree (a) 31 of rule law to the state in which it had been to the amendment prior than 1961, has 60 rather days with the that a defendant now exception acknowledging 10 within which to file his notice of While days Lewis, held that cases People supra, that v. and a number of subsequent mandatory, the time for notices of was jurisdictional filing decisions court direct our attention to a line of petitioners long P.2d (1947) with v. Slobodion 30 Cal.2d [181 commencing on a notices of prin- which relief from late filing granted 868] of constructive ciple filing.
We, therefore, deem to the solution of the appropriate helpful now before us to problem review and briefly summarize the law applicable as it stood to the immediately 31(a). prior 1961 amendment of rule In we survey take note of preliminarily two over number principles have been years reconciled and judicially accommodated. symbiotically The first of these is the which had jurisdiction ordained principle long that the as to the requirement time for a notice of in a criminal action was mandatory jurisdictional and that such time could be extended neither by (People nor order the court. stipulation parties Lewis, v. supra, cited; Cal. 413-414 and cases therein see also In re Del Campo, supra, 817; (1953) Cal.2d v. Roberts 40 Cal.2d 784]; People P.2d (1953) v. Howerton 40 Cal.2d [255 8]; People Behrmann 461- 575]; In re (1949) 33 Cal.2d Horowitz 513].) The second of these is the of constructive under the principle rubric of which to borrow the words aof “in a series of authority leading cases dealing mainly incarcerated theory prisoners, jurisdictional has (Witkin, been and excuses for late qualified, Cal. filing accepted.” Criminal Procedure It is to the emergence development of this second that we now turn our attention. principle Slobodion, supra, start with the
We
genesis
principle
request they clerk of the superior ward the notice so that it was received actually con- no other “In such circumstances late. there said: five We the hands notice in is tenable but that placing clusion appellant, *10 allowed day to the final six of the state’s for mailing prior employees his right appeal the governing for its actual met time filing, requirements he was Obviously, so. powerless it for him to do insofar as was possible his he delivered prison ensue after to any delay might prevent then tardiness any for forwarding; notice of to the state employees appeal would be It the state’s wholly employees. was attributable occurring the extend right the state may case that absurd to hold in a criminal such funda- deny and then thereof contingent pursuit appeal upon with were remiss complying the state’s mental because employees no legal justification, would have result the law. Such a state’s paradoxical his notice timely deposited that when be said here appellant and so must rules, the state prison by as required the state’s employees (People notice.” filing specified a constructive such action constituted Slobodion, 366-367.) at supra, v. pp. his concluded: delivery
We we hold “Accordingly, appellant’s the six days state forwarding prior prison employees to the date for the constituted constructive expiration within time limit satisfied jurisdictional require prescribed A (Id. 367-368.) ment as law.” at number of pp. appellate contemplated in this factual context. court decisions subsequently applied principle Gonsalves, 638, 483]; People (In re 48 645-646 P.2d supra, Cal.2d [311 105]; 638, (1958) P.2d v. Howard 166 640-643 Cal.App.2d [334 502]; People v. (1958) P.2d v. 715 [328 Cal.App.2d Griffin 254]; People v. Tenney P.2d (1958) 162 459-460 Cal.App.2d [328 899]; (1954) P.2d Rascon 119-120 Cal.App.2d [274 105]; v. Frye Stinchcomb (1953) P.2d 117 Cal.App.2d [255 (1949) Aresen 396]; People v. P.2d 92 Cal.App.2d [208 957].) 28-29 Cal.App.2d where the the situation prisoner This was extended to include principle delivered his notice of rule time has within prescribed it to reach too late for authorities for but nevertheless prison mailing 101, 104 Dailey (1959) People v. 175 Cal.App.2d clerk’s office in time. In of his notice defendant 558], held that “delivery awas constructive on the tenth day to the authorities prison 107) (id. at despite office as of that day” in the clerk’s county the eleventh day the clerk until was not received by fact that the notice one late. day of constructive of the theory with the application
Contemporaneously Slobodion, the context of to cases within factual fitting did where the extend the to situations theory prisoner courts proceeded he relied in time because upon repre- not file the written notice of sense him into false which lulled sentations or conduct of officials prison of security. People Calloway 497], Cal.App.2d at Quentin, arrival the state at San was informed prison counsel that prison advisory he had time to file his notice ample and that he would be assisted such counsel with its prepara However,
tion. because the defendant in the was transferred to meantime Folsom, the state he was the notice prevented preparing *11 Folsom, and such assistance. obtaining his arrival at the defendant Upon was in had placed no assistance and was that he would quarantine, told have to his notice himself. As a result prepare the notice was filed three late. The days court concluded that while the above facts fell short of the Slobodion, factual situation in precise “it tends to make a facie prima that defendant was lulled a showing into false sense of a security by repre state, sentative of the in the and that the opposite litigation,” party “ facts ‘come close to the the rule in enough stated exception (Id. Slobodion ....’” at 506-507.) pp.
In
v. Head
We nothing a full contains contrary. explana- The 1972 Judicial Council Report “the elimination tion of the the amendment amendment.12 One effect of *12 11In decade the between 1961 and apply principle there was no need to the filing of 31(a) constructive as such since the 1961 amendment provided of rule procedure obtaining for relief failure to pursuant “juris from file in time to which the dictional requirement timely filing of a notice of practically of has been nulli fied, defendants, (Witkin, as to (1969 incarcerated . .”. Cal. Criminal Procedure 700A, 327; Supp.) general 700A-700D, § 327-331.) see in pp. §§ Report 12The 1972 Annual the of Office the of California Courts .Administrative page existing at delays public expense states: “In order to eliminate the and re sulting cases, processing 31(a) from the of late notices of in criminal and Rule (d) January days, were amended effective 1972 to from to 60 10 in civil extend as cases, addition, filing the time for a notice of in a criminal case. In the amended allowing grant provisions appellate rule eliminated the former courts to relief from delay. appeals late when could an excuse the In appropriate defendants show for relief, years applications recent resulting delays. there been numerous for such with considerable have (a) superior will now mark amended Rule 31 the court clerks Under (date) merely any defendant that was not late ‘Received but not filed’ and then advise notice of filing view period elapsed. it filed for had In of because the allowing applications from late provisions the elimination the former for relief of early an anticipated defendants will continue to file appeals, that most they sentenced to a correctional The appeal, particularly when have been institution. remaining meet the situations when provided by 60-day the rule will additional time timely of any have to file a notice may a defendant for reason been unable taking generally the time for an rule also conforms under the former rules. This the allowed in civil cases. appeal in a criminal case with time superior January require effective 1972 to adopted also “A new Rule 250 was trial, upon conviction after judges, a criminal case imposing after sentence in court steps taking necessary right time and for appeal, to of of the advise defendant his to the late former for relief from appeals,” provisions allowing applications 31(a) that is the in rule formerly allowing contained special procedure is, however, the defendant to relief.” court for There “petition reviewing in the Judicial indicate intention nothing any Council’s statement to upon its in Slobodion constructive doctrine announced part abrogate filing or to to limit the and habeas attempt jurisdiction corpus appellate Gonsalves, supra, courts and In re given Slobodion recognition After for relief history of reviewing 10-year special procedure from late and of late from the noting delays resulting processing for notices of the Judicial Council basic causes two appeal, pinpointed the failure defendants in criminal cases: to file notices of appeal 31(a), The rule shortness of the former 10-day period prescribed the defendants’ ignorance particularly applied prisoners; 31(a) their The rule amendment of appeal rights. specifically for (a) aimed these causes the time two eliminating by lengthening the notice after (b) to 60 judges, requiring “superior trial, to advise sentence in a case after criminal conviction imposing for and necessary time right steps appeal, have counsel of an indigent ap- appellant Judicial Council (Rule him The court.”. pointed the above causes seems to have concluded elimination of of late there was filing, necessity existing little for retaining procedure that the continued avail- relief. Indeed one granting might speculate amendment would such a liberal ability procedure following sum, invite only continued laxity Judicial for relief Council’s action eliminated the in 1972 special procedure late the sentencing the time to enlarged imposed filing, *13 the Nowhere the defendant as to judge duty advising appeal rights. however, an intention to clothe in this revised do we procedure, perceive as to foreclose with an character so the rule absolute general jurisdictional all excuses late filing. the of constructive whether therefore to determine principle
We proceed in the cases such as those presented should be to situations filing applied him appointed indigent appellant have counsel and of the an the orally by given and transcribed judges’ he the The advice must court. alleged have past, defendants reporter file. the for inclusion in the case seeking required The rights ignorance an excuse for late their as ignorance defendants. any claim of transcripts and will rebut future advice serve to resulting delays the changes is to former The overall of these rule eliminate effect appeal.” processing the of late notices of from at bench. This us to examine the reach of the requires applied principle in Slobodion and its it has been only progeny. Generally speaking applied to incarcerated and circumstances where delay appellants special (a) notice of has resulted conduct or from representa- tions of (b) officials has not been relied prison upon prisoner due to fault on the Indeed we substantially part apprehend prisoner. this line of cases an that the in the main throughout assumption prisoner — acted that he did all he take the but was diligently could to thwarted a false acts of officials or that he was lulled into prison sense of noteworthy their conduct or It is security by representations. cases, however that in the decided delay conduct causing author- excuse for the was that of eventually delay, establishing prison ities rather than that of the This oc- other attorney prisoner’s persons. curred because the of counsel and under without assistance usually prisoner, incarceration, the extreme restraint of rely prison compelled authorities It is to assist in the of his notice. mailing preparation obvious that neither of the cases at bench fits within perimeter undertook of constructive since neither principle personally petitioner relied on mail his notice of and since neither prepare prison authorities for advice or assistance.
Nevertheless we believe that in the interest of justice principle should be extended to to situations like apply the instant one where the defendant is incarcerated or otherwise in custody after been having properly notified of his appeal rights by and has made sentencing judge arrange ments with his trial to file a attorney for him. Although we do not think that a defendant should be relieved from the responsibility which rule him, 250 notification we that he places upon yet may recognize choose to this discharge such Indeed we responsibility by arrangements. can see some reason to excuse a unlearned in the law who has prisoner relied the assurance upon of his trial counsel that the notice will of appeal be filed latter since the would be more prisoner justified on his counsel relying who had him and have some represented might continuous concern for him than who was not an official and had no with his familiarity case. we believe Although notification of to rule should rights home pursuant bring the defendant the his notice of in 60 never necessity days, we theless observe that the careful and instructions (apart thorough *14 the rule sentencing itself does not that this remains judge) emphasize of the defendant of the assistance undertaken responsibility regardless Furthermore, prison officials or trial counsel. objective despite rule we can well as (such understand inclination of for hand) under sentence and Benoit in the case at example petitioner
87 assistance. trial for his counsel rely the restraint jail facing prison, such an circumstances appellant in such And we can also understand how that an attorney— security believing a false sense of be lulled into may such task. In his undertaken out carry trial attorney—will his especially we' are situations,13 therefore, the circumstances compelling, and where may be applicable constructive properly that the think principle 31(a). with rule to constitute so as compliance each bench, view that petitioner we are of the the cases
Turning in filing the delay an excuse for facts to establish sufficient has presented principle within purview his respective as set forth above. constructive filing Redmon, sentenced, his Mr. appointed Benoit
When petitioner . . . available tomorrow he “make counsel, the court that would informed informed Redmon petitioner At that Mr. the Notice of meeting Appeal.” Red asked Mr. Benoit Petitioner he had grounds appeal. Benoit thereafter, Benoit Immediately petitioner his notice of mon to file appeal. charge. Upon another for trial County Monterey was transferred to Monterey appointed Mr. Goyne, Benoit informed arrival petitioner he and that conviction counsel, County his Shasta that he was appealing did file Redmon sure that Mr. wished Mr. to make Goyne that the secretary Mr. Redmon’s was assured Mr. Goyne inquired repeated At Benoit’s apparently was being petitioner processed. Redmon that Mr. insistence, and discovered later rechecked Mr. Goyne thought what he filed and so himself had not filed be 10 turned out to The notice was a notice on April Goyne Mr. misinformed mistakenly Benoit had late because petitioner as to the actual date of sentencing. it is true that rule a notice
While
250
for filing
places
responsibility
defendant,
it is
clear that a defendant may
appeal upon
equally
this
with an
In another
attorney.
discharge
arrangements
responsibility
31(a)
this
context and under former rule
as amended in
court repeat-
an attorney’s
delineated and
edly
emphasized
scope
importance
course,
“Of
a notice of
in a criminal case.
duty
respect
the trial
the defendant on
is under no
attorney
obligation
represent
here,
indicates,
he did
that he
but where the defendant
appeal,
clearly
request.
duty
ignore that
desires to
the trial
is under a
not to
pre
distinguishable
those
13We thus find situations in
cases at bench
18];
People
(1956)
Walsh
Riser
P.2d
v.
sented in:
in context under rule 31(a) as amended in In view of the adoption of rule as to trial to instruct defendant requires judge for a notice the trial proper attorney’s duty procedure appeal, is if a defendant quite an to file a notice simple: attorney appeal, requests must either inform attorney file such notice or clearly immediately the defendant that he will not file such notice and further inform that he can detailed by himself file to the according procedure yet trial If an this fails to fulfill judge. attorney negligently simple, for he be to action extremely duty, important may subject disciplinary Code, (Bus. breach of & Prof. professional duty. § 31(a), Rule effective January to the criminal applicable of both appeals in petitioners, prescribing of 60 to file period days written notice of our view allows time to take an ample in a criminal case. As (see stated previously fn. 12 and text) accompanying purpose the time extending from 10 to 60 eliminate what was believed to have been an unduly short period especially for the defendant in custody under a no procedure longer permitting an oral notice of court. open We believe that the 60-day period is now defendants, sufficient for those in including or other custody, who desire to take the counsel, and without appeal personally particularly in view of the notification of and advice necessary as to “the rights steps and time for an (rule added) italics appeal” which must now be given them the court. sentencing
We believe that it without goes that such saying more 60-day period than time afnple member of the State Bar. we are not While insensitive to the multifold day-to-day problems both in busy practitioner, service, private in the practice are the insouci public dismayed by we ance with which trial counsel in these matters before us seemed to have their regarded a crucial task obligation within an perform ample period of time in a circumstances, criminal case. we not Although may proper permit attorney’s dereliction of this duty to a defendant who penalize it, relied on his has'justifiably we will not excuse discharge such dereliction of and in the duty future well may refer matter to the State Bar hand, action. On the other appropriate disciplinary *16 under view of the time and the advice he has received in ample period a defendant whose counsel rule we will not indiscriminately permit the doctrine of con- has undertaken to file the notice of to invoke that structive when the defendant has no in seeing displayed diligence his has this discharged responsibility.
It that Benoit was fully is clear eminently diligent petitioner his his efforts within the to make sure 60-day repeated period control, and is entitled filed. He was thwarted circumstances his beyond to a that is of the doctrine declaration his virtue pending constructive filing. at sen when informed of his
Petitioner Wyckoff, counsel, Rounds, his decided to and asked Mr. tencing, appointed However, that he would do so. Mr. Rounds perfect promised circumstances, filed was not due to some the notice of unexplained 26, 1972, late. until June 46 days without direct contact was in Wyckoff
Although petitioner that he he had received the latter an attorney, express promise due, the notice was file a notice At or near the time would of appeal. been whether it had the clerk of the court Wyckoff petitioner inquired When, had still filed. he discovered the notice further upon inquiry not filed, he The latter apologized. been made of his attorney. profusely inquiry late, unsuccessfully Wyckoff sought After counsel filed the notice 46 days that filed. hold leave of court to have the notice We accepted his attor- reliance these in addition to reasonable efforts diligent to constructive filing entitles Wyckoff ney’s explicit promise petitioner his appeal.
Petitioner Benoit is entitled to the relief he seeks the writ is therefore District, The Court granted. Third is directed to Appeal, Appellate Benoit, the record accept Shasta prepared County, No. 44127.
Petitioner is entitled to the he Wyckoff relief seeks and the writ is there- fore The Clerk of the granted. San Court is directed Diego County Superior 26, 1972, to file the notice of received June v. Wyckoff, Crim.
The orders to show cause heretofore issued are discharged. J., McComb, J., Tobriner, J., Mosk, J., Burke, J., C. con- Wright, curred.
CLARK, The J. I dissent. discussion of the cases in which majority’s ac- and symbiotically doctrine has been reconciled “judicially
jurisdictional fails to commodated” with fiction of constructive recognize estoppel, of reconciliation and accommodation underlying principle *17 to the cases now before us. principle inapplicable As as this court held in a civil case that time early requirements failure a notice of cannot be waived the adverse by filing party’s because timely filing to raise the issue of late in a motion to dismiss filing 38 Cal. (1869) to the v. Daten “goes (Fairchild court.” jurisdiction 286.) 133], the defend People (1901) P. v. Walker 132 Cal. 138 [64
ant
contended “the same conclusion
filing
[that
“no
cases.” Finding
does not follow in criminal
jurisdictional]
civil
be made between
which a distinction in this
can
ground upon
respect
cases,”
considered
could not be
and criminal
we held the purported appeal
(Id. at
the statutory
because it had been filed after
period.1
expiration
410, 413
(1933)
Lewis
219 Cal.
We reiterated this
principle
notices of
“The
as to the time for filing
requirements
73]:
actions.”
and criminal
are
in both civil
mandatory
jurisdictional
It was no doubt because we had so
and so
held
recently
intransigently
“jurisdiction
be conferred
the consent
upon
[cannot]
stipulation
(Estate Hanley (1943)
or waiver”
parties, estoppel,
1250])
A.L.R.
that
when this court
[142 P.2d
did create an
to the
estoppel
doctrine in
exception
jurdisdictional
868],
Slobodion
The rationale of constructive in Slobodion fiction underlying is that the state as estopped should be from the prosecutor benefiting untimely caused the state as This is clear jailer. transparently short, the case: “In reading situation these considerations: presents The state law the conditions of an imposed governing appeal; incarcerated in a state institution was forced to with the appellant comply untimely 1In v. Varnum this court held an Cal. denying taken from an order a new trial case “must dismissed.” criminal be 3Corbin, ed.) (1960 page Contracts section rules, state which included the of all communications of censoring the inmates and which in the case of mail prior mailing legal might had; ‘one or a week’ before clearance and the notice in require day failed to reach the ‘clerk of the court’ for actual question superior time, within the not fault on the prescribed through any part appellant but as the result In such solely of the state’s negligence employees. circumstances no other conclusion is tenable but appellant, placing his notice in the hands of the state’s six days employees mailing prior to the final allowed for its actual the time day met filing, requirements do so. insofar as it was for him to governing possible he was ensue after Obviously, powerless any delay might prevent *18 he delivered in his for- notice of to the state for prison employees tardiness then was attributable state’s warding; any wholly occurring It would be absurd to hold in a criminal case that the state may employees. extend the thereof and then right timely appeal contingent upon pursuit such fundamental because the state’s were remiss deny employees with the state’s law. result would have Such complying paradoxical no timely so it must be said here that when legal justification, appellant his notice of with the state’s deposited by employees required rules, state such action constituted constructive filing speci- Slobodion, 366-367.) fied (People supra, notice.” v. at pp. cases
The fiction of constructive be to these should not applied because the is not Here justification underlying present. estoppel to, for, state as was not a nor the failure to file jailer party responsible notices of timely lies solely petitioners appeal. Responsibility Slobodion, their counsel. Unlike be said the state here is benefiting cannot from its own wrongdoing. invoked the
Both before and after Slobodion this court jurisdictional where the doctrine in relief late of the notice of from denying the tardiness. or his was attorney responsible Lewis, 410, supra, In Cal. the defendant contended late be both men attorney should excused because representing timely had his codefendant’s omitted defendant’s name from inadvertently of a inadvertence or held: through We “Where mistake law, within the time limited or his notice is not filed party relief thereafter by can afford neither the trial court nor appellate after Slobodion (Id. Long of a notice.” tardy permitting filing Campo (1961) in In re Del we cited the in Lewis with holding approval 192, 912], P.2d Cal.2d Cal.Rptr. [13 18], v. Riser Cal.2d 594 [305 had not been moved to dismiss the on the notice ground a breakdown delay filed within the The cause of required period. counsel, to an affidavit defendant and according communication between counsel, filed Slobodion defender. deputy public Distinguishing observed; “The was not the cause of the this court state ground delay, state appeal, has no to see that convicted duty every perfects prisoner People v. (See fail to act. nor is it should the defender responsible public Cox, Walsh, 73]; People 328-329 129 Cal.App.2d 1050].)”3 (Id. 595-596.) at pp. Cal.App.2d Lewis remained the law until it was “abrogated [1961] amend- fn. 2 31(a).” (1964) 61 Cal.2d (People ments to rule v. Casillas 31(a) in rule 521].) empowering The 392 P.2d provision Cal.Rptr. notice timely failure to file a courts to relief from appellate grant Therefore, courts no added in was eliminated in have such relief. longer jurisdiction grant if
Even this court had jurisdiction to relief failure to file a grant where is caused defense counsel rather delay *19 state, relief, than the we should refuse to such as we relief grant deny just where a is entered in reliance guilty on plea misrepresentations “ made defense counsel rather than the state. sentencing ‘[P]urported of defense misrepresentations counsel that a sentence will be im specific are insufficient to vitiate a posed (People entered reliance thereon’ plea (1966) 35]), v. Reeves 64 Cal.2d 415 P.2d Cal.Rptr. [51 are they insufficient to have effect on trial certainly any binding court as to the sentence to be Such imposed. alleged misrepresentations cannot rise to the of a valid least level in the absence of at bargain plea (Cf., substantial corroboration official. apparent responsible public (1953) 1050], Cal.App.2d 3In v. Cox oral notice of [260 given appeal open appeal court but written was not filed time. In an accompanying appeal explained affidavit the written he notice of thought had been informed an had been made been properly. had handled Counsel contended the failure of trial counsel Slobodion, brought Distinguishing perfect case under Slobodion. recognized Appeal holding: Court of no excuse relied on Lewis for “The courts have injustice hardship apparent for the late notice of whatever the (120 247.) Cal.App.2d p. involved.” at 73], (1954) from Cal.App.2d v. Walsh nobis, his failure to petition a writ coram the defendant claimed denial counsel, public an assistant appeal his conviction should be excused because his trial defender, gave but assured him an would be taken and oral charged not be never filed Defendant contended he should written notice of defender, Appeal neglect The Court of court-appointed with the counsel. public Cox, supra, rejected indistinguishable his con- found case v. (129 329.) Cal.App.2d p. tention. People Gilbert 657]).” (People 25 Cal.2d Ribero 308].) 61-62 480 P.2d Cal.Rptr.
The majority concedes: is true that rule 250 places responsibility “[I]t (Ante, a notice the defendant. . . .” appeal upon A defendant who chooses to this counsel discharge through responsibility should be held liable for his counsel’s negligence.
Since this court does not have the relief jurisdiction grant petitioners seek, and should not such relief even if had grant jurisdiction, peti- tions for writs of habeas should be denied. corpus for a was denied October
Respondent’s rehearing petition Clark, J., was of the that the should be opinion granted. petition