People v. Strickland

California Court of Appeal Aug 3, 1955 No. Crim. 1014Published

Before: Mussell

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Holding. The court dismissed the appeal because the notice of appeal was not filed within the required time period. It further noted that the evidence was sufficient to support the defendant's convictions for rape and assault.

Issues

Whether the appeal should be dismissed for failure to file a timely notice of appeal.
Whether the evidence was sufficient to support the convictions for rape and assault.
Whether the trial court erred in its handling of the defendant's insanity plea.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Defendant’s notice of appeal was not filed in time and the rule is that under such circumstances an appeal must be dismissed.”

“The appeal is dismissed and the attempted appeal from the purported order is also dismissed.”

MUSSELL, J.

Defendant was charged in count one of an information with the crime of rape by force and violence (Pen. Code, § 261, subd. 3) alleged to have been committed on or about March 21, 1954, upon one Patty Guerra, a 10-year-old girl. In the second count he was charged with the crime of committing lewd and lascivious acts upon the body of said child (Pen. Code, § 288), and in count three defendant was charged with the crime of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245.)

The defendant entered pleas of not guilty and not guilty by reason of insanity as to said three counts. A jury trial was waived by defendant, his counsel and by the district attorney. The trial court found defendant guilty as to counts one (rape) and three (assault by means of force likely to produce great bodily injury), and not guilty of the offense charged in count two. The court also found that the defendant was sane at the time the offenses were committed. Judgment was entered on July 27, 1954, and defendant was sentenced to the state prison. On August 9, 1954, he filed a notice of appeal from the judgment and “from the order denying motion for a new trial.’’ No motion for a new trial was made. Therefore, the attempted appeal from the purported order denying the motion should be

[817]

dismissed. Defendant’s notice of appeal was not filed in time and the rule is that under such circumstances an appeal must be dismissed.

(People

Behrmann,

34 Cal.2d 459, 461, 462 [211 P.2d 575].) Appellant states in his closing brief that after entering the state institution at Chino he made every attempt possible to contact the legal officer of the institution to file a notice of appeal; that after many days with no interview by the legal officer, he wrote to the county clerk at San Diego; that this letter was returned with a notice to see the legal officer and on August 6th the legal officer interviewed him and permitted the filing of the notice of appeal. No motion was made by the attorney general to dismiss this appeal and the record does not contain proof of facts sufficient to show a constructive filing of the notice within the 10-day period as was the ease in

People v. Strickland

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MUSSELL, J.

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