People v. Tapia

WOOD (Fred B.), J.

Defendant-appellant was convicted of two violations of section 11500 of the Health and Safety Code: sales of marijuana on January 9 and 13, 1958. He does not question the sufficiency of the evidence to support the verdict. He does claim that prejudicial error occurred during the trial. But first there is a question as to the timeliness of the appeal.

In its brief filed herein, respondent called attention to the fact that “ [o]n the face of the record ... it appears that notice of appeal was filed on June 4, while the judgment appealed from was entered on May 23 [1958], We, therefore feel compelled to point this fact out so that the jurisdiction of this court can be properly established ...”

Soon after the filing of respondent’s brief appellant made and filed an affidavit in which he stated the following signicant facts: He was represented by court appointed counsel up to the time of sentencing and was without funds to procure representation on appeal.

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He was unable to obtain an interview with the prison officials at Vacaville Reception Center to obtain information concerning the procedure of appealing and requested the information from the attorney who had represented him during the trial. That attorney on May 28, 1958, mailed him the requested information, which was received at Vacaville Reception Center on May 29, 1958, but was not delivered by the prison officials to appellant until June 2, 1958. On June 2, upon receipt of this informa

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tion appellant wrote and mailed this notice of appeal to the superior court, which notice was actually filed in that court on June 4, 1958.

Attached to the affidavit, as a part of it, is the letter from his former attorney, giving him the requested information, also the face of the envelope in which it came, postmarked “May 28, 1958,” at the place of mailing, and an interdepartinent route slip of the California Medical Facility at Vacaville showing that the letter was received at the facility on May 29, 1958.

Appellant states in his affidavit that his notice of appeal would have been timely filed had the prison officials at the Vacaville Facility promptly delivered that letter to him.