*1 14, 1969.] No. 12089. In Bank. Nov. [Crim. PEOPLE,
THE Plaintiff Respondent, BAILEY, J. Defendant and
WILLIE Appellant.
Counsel Court, for Defend- Burris, under Supreme Edgar Don appointment ant Appellant. Griffin, General, and C. C.
Thomas Deputy Attorney Philip Lynch, General, for Plaintiff Respondent. Attorney Opinion
PETERS, Petitioner seeks an order him J. to file a belated permitting 31(a) to rule California Rules of Court. appeal pursuant 25, 1967,
Petitioner convicted of two May counts of kidnaрing two counts of first armed and three counts of robbery, degree robbery, second not armed. He was sentenced on June degree robbery, 1967. later, months than four less sought October
On of his to forward him trial court transcript mandamus to compel had been filed. that no notice notified time he was At that trial. 29, 1967, which was on December a notice Pеtitioner then filed thereafter, commenced Shortly not filed.” “received but marked instant proceeding. and that he
Petitioner requested alleges within 10 the county jail a notice of from himself mailed judgment. Carkeet, A. facts, the Ross Honorable order to ascertain the Judge
In and directed Court, Tuolumne County, appointed Superior to conduct an hearing. evidentiary *4 the
The evidence found summarized as follows: may Scarlett, testified at Petitioner’s Mr. the time of the verdict attorney, that he came to the court for petitioner requested appeal; sentencing behalf; believes, a of to notice file that he prepared appeal certain, form had but that аn been is not his appeal prepared by secretary; sentenced, the that when discussed matter of an they appeal; not and stated he was wanted to but was guilty appeal of undecided about because concern about pursuing serving time” and that he would “dead while an make his pending, up to and if he decided do so file himsеlf. mind whether attorney also of testified that he told limitation for notice filing and stressed its and that indicated that he importance act time. The understood and would stated required attorney with Miss a that he did recall conversation Vernetta friend Badger, trial, she have at the been who testified although may present the conversation with petitioner. that at There is Petitioner testified the time of. sentenc- other evidence. that he first he and discussed matter of told ing attorney appeal, about an and that he but later was undecided appeal, file understood or not file” “didn’t know whether [him] [his attorney] state whether or not He did not uncertainty when the talk ended. He “dead time.” further testified that to a fear was due whether his uncertain three after
about sentencing, being a in an unsealed in he notice a notice of would file placed envelope familiar with filed procedure having in He was mail the jail. receptacle case four months earlier. in the Although another notice document form and verified his an inmate’s case he had earlier legal signed authorities, returned were him notice when the documents jail with the notice in the instant in connection such documents not execute with both of the notice of Miss discussed case. He Badger filed. the notice was before and after Scarlett she to Mr. testified that
Miss sentencing prior spoke Badger a notice of that as and said he would file on two occasions they stated he “fix after would the courtroom left sentencing out,” saw that thereafter she see that his and gets secretary appeal up visits he that on one of these in the every county jail nearly day, letter, and called his that in a letter which he showed her August on the оf the instant commencement 1968 after again proceeding told her that he had “made the Mr. Scarlett of the instant hearing morning off” he did not it to send them but that out secretary gave appeals to it. know what happened as to Mear of Los Sheriff’s testified
Lieutenant Angeles Department Mail is in mail followed at recep- jail: deposited mailing procedures delivered into then an inmate and located in the tacles gathered by jail, of the censored, documents are sorted out is the mail legal system. then a form record inmate’s A system. deputy prepares inmate both the is and the document document signs stamped. of a form. record notice document and the Nо appeal by petitioner' be found. June of could *5 1967, 11,
On less than four months after October sentencing, petitioner the clerk the trial court filed a for a writ of mandamus of compel petition notice he had filed a on He that to forward the record alleged timely appeal. 19, document, 1967, June which attached a dated of appeal of of The for writ of alleged be a the notice petition copy appeal. mapdaje 1967, the that the 20, off calendar on October was ordered ground December, of filed. At the end of notice had not been original appeal the court and attached an sent a notice of appeаl superior The notice that he had filed a notice affidavit stating appeal. previously com- filed, thereafter was marked received but not and shortly menced the instant proceeding.
The referee found the did not the request but instead instructed his period, a file notice of he was because undecided about an and would file his own if decided to notice In these appeal. pursue making findings, referee at from the length quoted attorney’s testimony including part where he stated that was undecided whether to due to his about concern “dead time.” further found that his own fabricated, notice of were allegations made no efforts to file a notice of within the 10- conсlusions, In these the referee day period following judgment. reaching
185 of Miss chose to disregard Badger, labeling confusing testimony of a faulty memory. product General has not attacked the of the referee. Attorney claims that the referee Petitioner improperly disregarded and that in liberal rules of construction Miss light Badger favoring allowance of an of the evidence a weight requires finding mailed a notice of unnecessary appears the merits of to determine this court to make petitioner’s request to those of the because under findings contrary independent consistent with the view of the evidence and is entitled findings, petitioner to relief as a matter law. 31(a) which
Rule
a criminal
requires
filed within 10
of rendition of
case be
judgment empowers appellate
courts to
relief in
cases. The
is to be exercised
grant
proper
power
liberally
so that
be considered on their
right
protect
appeals may
merits, and so that forfeitures of substantial
on technical
rights
grounds
Acosta,
be avоided.
683,
v.
71 Cal.2d
may
(E.g., People
Cal.Rptr.
[78
864,
Casillas,
entirely respects accepted attorney. do to resolve this We not have conflict. The also attorney’s tеstimony relief.1 warrants granting findings binding that the 1It is settled referee are not upon this court even evidence,
though conflicting they great weight, based on are entitled to and that 186 that a that the is of such right settled to importance is entitled to
defendant desires to is protection who to an uninformed notice of assistance for a appeаl, period filing is for client in “indispensable,” filing meeting requirements fails and the but his latter that if a asks defendant agrees attorney a defendant so, and that where is entitled to to do defendant protection, in a a to file notice of attorney may proper appeal, requests but “unless lacks merit case tell client that in opinion such be under a to file client should abandons his duty request, to the notice, counsel, the defendant as or to instruct a secure other Tucker, 828, 832 v. 61 Cal.2d [40 (People Cal.Rptr. proper procedure.” Acosta, v. 71 683, Cal.2d supra, 687; 449]; People 609, P.2d Camarillo, 395 112, 426 P.2d 455, v. 66 Cal.2d 458 [58 People Cal.Rptr. 512].) waive may defendant
Although, obviously, right abandoning his for an such a waiver must be an request appeal, informed one, and defendant abandon his where a seeks to on the basis of a request the effect misapprehension as to which is misapprehension is communicated to the the defendant attorney, entitled to protection. failure of to correct the under such cir misapprehension, cumstances, advice. is The first re equivalent giving wrong to. waiver or constitutional quirement statutory is that it rights . Walker, 54, re 71 Cal.2d (In be made. and intelligently knowingly 16, we 453 P.2d On the basis this rule 456].) have.re Cal.Rptr. [77 due held a defendant who fails ignorance cently - or of the 10-day filing appeal.,i&u right requirement Acosta, rule v. 71 Cal.2d entitled relief under 31(a). (People supra, Castillo, 692, 687 et see v. 71 Cal.2d Cal.Rрtr. People seq.; [78 a de where it is P.2d established 141].) Similarly, is on a fendant’s based abandonment misappre request is hension as effect of the waiver of the to the request absent made, relief under rule 31(a), intelligently knowingly an effective or waiver should available. Such a estoppel, determining accept court has as its the burden o whether to the referee’s f Acosta, Notz, 687; 62 Cal.2d own. In re (E.g., People supra, Cal.2d *7 423, 321, 593].) directly point Cal.Rptr. rules in 425-426 P.2d These are not [42 evidence, including that because view of the credited here under see, only is entitled to relief. We refuse follow the conclu- petitioner, as we shall sions of law on this evidence. based with role of this court exerсise the is in accord conclusion jurisdiction 31(a) rule whenever conferred on it and relief as a grant possible Tucker, of a notice from late v. matter filing (People policy appeal 828, 832), 61 Cal.2d and with interest of state that supra, justice an claim done in cases which reinforces that his criminal appellant’s Casillas, 344, v. be cоnsidered on the merits 61 Cal.2d (People supra, 346). should out that a somewhat we .be in situation have analogous pointed that a defendant’s as to the effect of recognized misapprehension
previously Cameron, an furnished an excuse for failure to In In re appeal. 633],
Cal.2d 491-492 439 P.2d a substantial [67 Cal.Rptr. factor in the defendant’s determination abandon after he had been sentenced on his to life conviction of murder in first imprisonment that was his fear on a retrial receive the death We degree might penalty. that held such fear constituted an excuse for failure unjustified adequate invoke Although Cameron differs in a remedy by number of appeal. us, that from the case beforе it bears the abandonment respects emphasis there, here, as based that not on a determination would be without merit but on as to increased which might misapprehension penalties result due to the of an that such this court filing recognized failure constituted an excuse for to invoke the misapprehension adequate remedy by aрpeal. case,
In the instant
it is clear from the attorney’s
in
referee’s
wanted to
quoted
and
report
but was undecided
due
concern
requested
would be
“dead time.” Petitioner’s fear of
“dead time” due
serving
serving
teethe
based
an erroneous view of the
law as to
the effect of an
at least if he started
time in the state
prison.
Cоde,
2900, 2900.1;
(Pen.
cf. North
Pearce,
Carolina v.
§§
395 U.S.
L.Ed.2d
seeking delay constituted waiver right However, for a move the record shows that delayed appeal. to enforce his within four months of sought appeal rights sentencing has since then with due and the relief diligence, proceeded delay seeking (a) under rule 31 should not be deemed a waiver or (Cf. People estoppel.
Acosta, 683, 690.) 71 Cal.2d supra, under
Petitioner’s for relief rule 31(a) is The Clerk application granted. *8 file the notice of is directed to Court of Los Angeles County Superior with the of received him to by preparation heretofore proceed the record on appeal. Tobriner, J., Sullivan, J., J., concurred. C.
Traynor, MOSK, J. I dissent. Ross A. able and court
This Judge experienced appointed He took of Tuolumne Carkeet of the Court County. testimony, Superior on witnesses, conclusions four reached considered examined specific ques- him, a thoughtful proposed tions of fact submitted to prepared report the I am unable to For reasons of fact. majority comprehend, determination on and make their own this his court disputed report reject facts. His referee.
Four were submitted forthrightly report questions answered each query. “Within 10 after
The considered referee was: first issue days by what, state in if did rendition of regard anything, judgment, petitioner him at trial?” The attorney who attorney represented or sure as whether not he testified under oath “was not petitioner wanted to and that he had not made mind as to whether he appeal, up he would be of the fact that the notice of in view wanted to file he to file the at that that if did wаnt dead time. I advised him time from that date.” file within that he must the notice appeal, The that he told the himself on that testified attorney subject petitioner no, I said I wasn’t decided “and then it and changed file a notice of appeal he did not rely about it further conceded thereafter upon then.” He file the notice appeal. what, this: issue framed was “Within if second 10-day period, or do in to an did The record is anything, attorney say regard appeal?” advised clear that the notice must filed as indicated he had not made his mind days, up that under these circumstances the whether he would task do counsel and was had appointed nothing required completed further. efforts, third was: “Within what if 10-day period, any, query mail a appeal?”. make to notice While asserted efforts to reveal no that made file records county jail documents June or mailing July 1967. deposited out is record for a notice sent There in connection with another case in which is February *9 The referee found was familiar with involved. mailing “petitionеr of the and from his knew county procedures jail previous experience he that if he mailed a notice of would be February a record of inmate’s document for such sign mailing required of 1967. and there is no record of such Admittedly June none signed of the documentation ever mail channels having gone through county The referee “that the is a fabrica- concluded jail.” petitioner and it is tion who finds that by disbelieved amail within the following timely 10-day period judgment, fact and made no efforts to file or a notice of mail
said 10-day period.” the fourth and issue found
On final the referee foregoing “upon features of this case it to me that there was neither seems clear evidentiary on the of his trial by petitioner request appeal, promise part nor an ineffectual effort on the part during the critical therefore lacks Petitioner’s for relief plea period. substance, and I find that rendition of within 10 after judgment made no statement in to the who regard him at the trial to the his desire to represented indicating appeal.” seem disturbed at fear of “deаd time” and state majority “an of the erroneous view which should law” have been corrected by I
counsel. that it was not suggest erroneous view respectfully necessarily counsel, correction and requiring that the was well alerted to and,its the law Section Penal Code possibilities. provides the “term of fixed ain criminal action imprisonmеnt judgment commences to run the actual of the defendant into the only upon delivery Corrections____” of the Director of Thus if the were to custody remain in the to consult with and assist his counsel county jail would receive no credit therefor on preparation sentence. would indeed be “dead time.” suffered a Having previous conviction, from which he was then was neither appealing, naive uninitiated and well aware of the nor. circumstances involved in sentences appeals. Since no evidence has been to this court more than presented persuasive and recommendation of the I would his views adopt the relief deny sought.
McComb, J., Burke, J., concurred. for a was denied December 1969. Respondent’s petition rehearing McComb, J., Mosk, J., Burke, J., were of the opinion peti- tion should granted.