People v. Garcia

PETERS, J.

This is a petition by Jerry Joseph Garcia, Jr., for relief from default because of the late filing of a notice of appeal. Under rule 31(a) of the California Rules of Court the power is conferred upon the appellate courts to grant relief in proper cases from a late filing. It is settled by the case law that the power thus conferred should be liberally exercised to protect the right to appeal where reasonably possible.

(People

v.

Casillas,

61 Cal.2d 344 [38 Cal.Rptr. 721, 392 P.2d 521] ;

People

v.

Madrid,

62 Cal.2d 602 [43 Cal.Rptr. 638, 400 P.2d 750], and cases cited.)

This case has been before us on a prior occasion. After the District Court of Appeal had denied relief, we granted a hearing, and returned the case to that court “with directions to proceed in accordance with the procedure adopted in

[267]

People

v.

Tucker,

61 Cal.2d 828 [40 Cal.Rptr. 609, 395 P.2d 449].” In the

Tucker

case, in the face of allegations substantially similar to those here involved, we appointed a referee to determine the truth of those allegations. On conflicting evidence, substantially similar to what developed in the instant ease, the referee determined the conflict in favor of the petitioner there involved, and recommended the granting of the requested relief. We adopted the findings of the referee and granted relief. In the present case, the District Court of Appeal did not follow this procedure. It made what it called an “independent inquiry,” which consisted of having one of the justices of the court telephone the counsel who had defended petitioner at the trial, a deputy public defender. Upon the representation by that deputy, over the telephone, that petitioner had not made a request to appeal, the petition was again denied. We again granted a hearing because the District Court of Appeal did not proceed as directed, and did not use a proper method to decide a controverted question of fact.