People v. Riser

TRAYNOR, J.

Roscoe R. Riser and his brother Richard G. Riser were found guilty by a jury of murder in the first degree. The jury fixed the punishment at life imprisonment for Roscoe Riser. A motion for a new trial was denied, and on February 24, 1956, judgment was entered on the verdict. Richard Riser’s appeal to this court is automatic under section 1239, subdivision (b), of the Penal Code, but to perfect an appeal defendant Roscoe Riser was required by rule 31 of the Rules on Appeal to file his notice of appeal “within 10 days

[595]

after the rendition of the judgment. ...” Defendant did not file a notice of appeal until March 30th, considerably beyond the 10-day period. The People have filed a motion that the appeal be dismissed because defendant did not file his notice of appeal within the required time.

In an affidavit the deputy public defender, one of defendant’s counsel, gives an explanation of the delay. He states that prior to judgment he discussed with defendant the question of appeal, but they reached no decision; that late in the morning of February 24th, after judgment had been entered, he and the public defender attempted to get in touch with defendant at the county jail only to find that he had already been sent to San Quentin; and that during the succeeding 10 days, they received no communication from him and consequently took no action to perfect an appeal.

Defendant contends that in view of the seriousness of the sentence the appeal should be allowed because of the difficulty of communication between him and his counsel, because the delay in filing was owing to no fault of defendant, and because the points on appeal would be the same as those raised by the automatic appeal of Richard Riser.

In support of this contention, defendant cites

People

v.

Slobodian,

30 Cal.2d 362 [181 P.2d 868], In that case we declined to dismiss an appeal where a prisoner had deposited his notice of appeal with prison employees and the lateness of filing was wholly attributable either to the negligence of those employees or to prison routine. The appellant had done all he could to assure timely filing. Recently, in