In Re Notz

In the

Curry

ease,

supra,

it was stated

(ante,

at p. 210) : “Under the rules of these eases it is now settled

[425]

that where there is a request to appeal within the 10-day period by the defendant, and a promise of the attorney to do so, or where there is such a promise but no such request, or where there is such a request but no promise, absent grounds of waiver or estoppel, the defendant is entitled to relief. ’ ’

In the instant case there was both a request and a promise.

Petitioner was convicted of receiving stolen property (Pen. Code, § 496), a felony, in the Superior Court of the County of Los Angeles. He was sentenced on December 31, 1963. He was transferred to a state prison facility on January 14, 1964. He made inquiry as to the status of his supposed appeal, and after discovering that no appeal had been filed, petitioned the appellate court for relief from his default. The District Court of Appeal denied his petition on April 3, 1964. This present petition was filed in this court April 14, 1964. No claim of waiver or estoppel is made.

The petition alleges that the trial counsel “told petitioner that he would put in his notice of appeal,” but failed to do so. This court issued its order to show cause, appointed counsel for petitioner, and appointed the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin, as a referee to determine what petitioner stated to his attorney, if anything, with regard to an appeal and what, if anything, the attorney said or did in regard to an appeal. The referee, after a hearing, found that within the 10 days of the rendition of judgment petitioner requested his attorney to appeal and that the attorney promised to do so. Based on these findings, and his analysis of the evidence, the referee in his report to this court concluded with the statement that “It would appear to your Referee that the application ought to be granted and he does so recommend.” The Attorney General has filed objections to the referee’s report and findings, but has stipulated with the attorney for petitioner that the case may be submitted without being placed on the calendar for oral argument, and without the filing of further briefs.