In Re Thornton

PETERS, J.

This is a petition for habeas corpus by which petitioner seeks to he relieved, under rule 31(a) of the California Rules of Court, from his late filing of a notice of appeal in a criminal case.

The record shows that in 1957 petitioner was convicted and sentenced to the state prison. In 1959 he was paroled. He violated that parole, was returned to prison, and again paroled in 1962. In May of 1963 he was found guilty of a felonious narcotic offense. The imposition of sentence was suspended and petitioner was placed on probation for five years. In 1964 he was charged with unlawful possession of a gun by a felon and also with violation of probation. On April 9, 1964, his probation was revoked because he had been convicted of the possession of a gun (for which he was given one year in the county jail) and he was sentenced on the 1963 narcotic offense to the state prison.

[485]

In November 1964 he filed a petition for a writ of error

coram nobis

with the superior court, attaching to it a premature notice of appeal. This was summarily denied on December 1, 1964. On February 10, 1965, he filed a petition for a writ of mandate with the District Court of Appeal. That court treated it as a petition for relief from default under rule 31(a) and denied it by order of February 17, 1965. No further relief was sought in that or in the

coram nobis

proceeding. Petitioner filed this petition for a writ of habeas corpus April 1,1965.

It appears that when petitioner was sentenced on April 9, 1964, he was represented by a deputy public defender. Petitioner avers that immediately after the trial judge had imposed sentence he asked the deputy to file a notice of appeal and that the deputy promised to do so. No such notice was filed. If these allegations are true, absent grounds of waiver or estoppel, petitioner would be entitled to the relief he seeks.

(People

v.

Casillas,