People v. Martiz

PETERS, P. J.

By information Artis Martiz was charged in two counts with having violated section 11500 of the Health and Safety Code, that is, that on January 4, 1954, and again on January 5, 1954, he had unlawfully sold and furnished narcotics. One Willie Scott was jointly charged as to the count relating to January 4, 1954, and each accused was charged with a prior conviction. Scott pleaded guilty, but Martiz, although admitting the prior, pleaded not guilty to the two main charges. The jury found Martiz guilty on both counts. Judgment and sentence were entered April 8, 1954. On June 18, 1954, Martiz filed a notice of appeal from the judgment. Rule 31 of the Rules on Appeal requires that in criminal cases a written notice of appeal must be filed “with the clerk of the superior court within 10 days after the rendition of the judgment.” The filing of such notice within the time specified is jurisdictional and not subject to qualification because of hardship.

(People

v.

Dawson,

98 Cal.App.2d 517 [220 P.2d 587];

People

v.

Lewis,

219 Cal. 410 [27 P.2d 73].)

Appellant recognizes that the notice of appeal was filed too late, but contends that such late filing should be excused for the following reasons: On May 10, 1954, appellant placed in the hands of the mail clerk at San Quentin an affidavit directed to the District Court of Appeal, First Appellate District. It is there averred that “on Monday, April 12th, 1954, as a prisoner in the Alameda County Jail, he prepared a Notice of Appeal, and deposited it at the designated place prescribed for picking-up mail.” It is then averred that he assumes “that the Court had neglected, or overlooked, or did not receive the Notice of Appeal” and for those reasons “he is asking the Court to notify him of any action taken, as the result of his Notice of April 12th, 1954. If no action was taken, he requests the Court to grant him relief from the loss of ten (10) days appeal.” A copy of this affidavit was mailed to the Alameda County Clerk.

[604]