People v. Cato

NOURSE, P. J.

This is an appeal from an order denying an application made by defendant in propria persona to the San Francisco Superior Court, dated December 15, 1954,

[504]

with respect to his appeal from a judgment of conviction of second degree murder entered by said court on December 19, 1951. No notice of appeal of said judgment had previously been filed. In 1953 appellant had petitioned the California Supreme Court for a writ of habeas corpus, which was denied without opinion. Appellant then petitioned the United States Supreme Court for a writ of certiorari stating among other grounds: “XI. That petitioner was deprived of his rights to give notice of appeal and the arrest of judgment of conviction by actions of his jailors.” On October 14, 1954, said petition was denied on the following terms: " The petition for writ of certiorari is denied without prejudice to the petitioner’s rights under the facts alleged to prosecute an appeal in the California State Courts in accordance with principles announced in

People

v.

Slobodion,

30 Cal.2d 362 [191 P.2d 1].” Appellant’s above application to the superior court stated in substance that appellant appealed from the judgment of December 19, 1951, on the basis of the above order of the United States Supreme Court and prayed for an order allowing such appeal and for an order for a transcript on appeal, designating the parts of the reporter’s transcript he desired. His petition for writ of certiorari, containing his grievances against the original judgment, was appended. On February 24, 1955, the matter was heard in the superior court, appellant and a witness for the People testified and the motion was denied, the court holding that the facts, even those testified to by appellant, did not bring him under the Slobodion case. The transcript shows that when on December 19, 1951, appellant was sentenced to San Quentin a stay of execution was granted to and including January 2, 1952. Appellant’s testimony was in substance to the following effect. During that period he was kept in the San Francisco County Jail No. 1. On December 19th his attorneys visited him there. They advised against appeal, but he said that he thought he would continue. He had an arrangement with them that for the amount paid by him they would defend his case in full including, if necessary, an appeal. The result of their conversation was that appellant and the attorneys would think the question of appeal over, and that one of the attorneys would be back in a day or so. When he did not come, even after appellant wrote to them asking why they did not show up, appellant himself wrote out a document intended as a notice of appeal, and gave it to a man, he knew as Mr. Jule. After