People v. Collier

PETERS, J.

Petitioner seeks relief from his default in failing to file his notice of appeal in a criminal case within the 10-day period specified by rule 31(a) of the California Rules of Court. That rule provides for relief from default in a proper case. The power to grant such relief should be liberally exercised to avoid, if possible, the loss of the right to appeal. The prior eases announcing and applying that liberal rule have been cited and reviewed in

People

v.

Curry, ante,

p. 207 [42 Cal.Rptr. 17, 397 P.2d 1009] (see also

In re Notz, ante,

p. 423 [42 Cal.Rptr. 321, 398 P.2d 593]).

The rules of these eases were summarized as follows in the

Curry

ease,

supra

(at p. 210) : “Under the rules of these eases it is now settled that where there is a request to appeal within the 10-day period by the defendant, and a

[545]

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 present ease the weight of the evidence shows that petitioner, within the 10-day period, expressed to his attorney his desire to appeal, and that the attorney failed to take the required steps to perfect the appeal or to inform his client of the proper procedure. Therefore, the requested relief from default should be granted.

On February 13, 1964, in the Superior Court of Kern County, defendant was found guilty of two felonies. He was sentenced that same day. From that date, and for about 10 days thereafter, he remained in custody in the county jail. After February 13th, he did not see his trial counsel until February 21st, because the attorney was ill and hospitalized or home in bed during that period. On the 21st the attorney called on petitioner, who was still in the county jail. At that time petitioner expressed his desire to appeal. The attorney did not promise to appeal, although he expressed the opinion an appeal would be without merit. However, he did not tell petitioner that he would not appeal, nor did he explain the procedure of appeal to the defendant, or attempt to secure for defendant new counsel.