People v. Rascon

NOURSE, P. J.

Defendant Robert Rascón was charged with the crime of burglary and with a prior felony conviction, which he admitted. He was tried before a jury and convicted of burglary in the first degree. He appeals from the judgment and from the order denying his motion for a new trial. (The notice of appeal states an appeal from the order denying his motion for a new trial, as well as from the judgment, but there is no record of any such motion made or denied, and appellant states in his opening brief that no motion was made for a new trial. Therefore this will be considered as an appeal from the judgment only.)

Before considering the merits of the appeal it is necessary to decide the point raised by respondent that the appeal should be dismissed for failure to file the appeal with the clerk of the superior court within the time prescribed by rule 31, Rules on Appeal or “within 10 days after the rendition of the judgment.” Judgment was rendered on November 27, 1953; the notice of appeal, dated December 2, 1953, was filed December 9, 1953, two days late. In an affidavit appellant states that after judgment was rendered he was sent to the state prison at San Quentin, that on December 2, 1953, he went to the prison sociologist’s office where he was interviewed by Mr. Faustman, that at that time he signed his notice of appeal and was told by Mr. Faustman that “it would be in on time, and that he (Mr. Faustman) said that he would take care of mailing it for me.” Defendant avers: “I therefore did all in my power to get my appeal in on time by

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giving it to an employee of the State, and I relied on his representation that it would be mailed on time.” Mr. Faust-man, senior sociologist at San Quentin, whose duties consist of interviewing prisoners, preparing case summaries and handling inmate legal matters, in an affidavit declares himself “at a loss to understand why there should have been the delay evident in this case.” However, he refutes none of the statements made in appellant’s affidavit and concludes his affidavit by stating: “I can only surmise that due possibly to the indirect method of handling the mail out of the Reception-Guidance Center plus the enormous volume processed through the Mail Office at San Quentin every day it became misplaced, and so did not go out until 12-7-54.”

This case comes within the rule set forth in