The majority state that petitioner was entitled to file a late notice of appeal immediately after the discovery of counsel's erroneous advice on "dead time." I agree. However, the majority go on to hold that petitioner's failure to act promptly after the discovery precludes granting relief. I must respectfully dissent from this holding. In so holding, the majority have forgotten the injustice that led to the promulgation of rule 31(a) and have merely paid lip service to the settled policy that rule 31(a) must be liberally construed in favor of the right to appeal.
Petitioner has presented a reasonable explanation of the delay from the time of his discovery of counsel's error to the time of filing a late notice of appeal. The majority reject this explanation by ignoring or unfavorably interpreting the facts which establish its validity.
The settled policy of liberal construction of rule 31(a) requires us to carefully consider all the facts presented and to interpret them in the light most favorable to petitioner. (E.g.,People v. Tucker (1964) 61 Cal.2d 828, 832 [40 Cal.Rptr. 609,395 P.2d 449].) Although the majority *Page 298 recognize the existence of the policy of liberal construction of rule 31(a), they have failed to give effect to the policy.
Moreover, even without interpreting the facts in a favorable light as required by the policy of liberal construction of rule 31(a), the petitioner would be entitled to the relief sought. Contrary to the majority, I believe that petitioner has presented a reasonable and compelling explanation of his delay in filing.
Rule 31(a) was promulgated to prevent the injustice of dismissing a meritorious appeal merely because of a failure to file a notice within 10 days. Because of our recognition of the dangers of depriving the defendant of his rights in order to facilitate the speedy and efficient administration of justice, we have consistently held that rule 31(a) must be liberally construed in favor of the right of appeal. (People v. Bailey (1969) 1 Cal.3d 180, 185 [81 Cal.Rptr. 774, 460 P.2d 974];People v. Acosta (1969) 71 Cal.2d 683, 685 [78 Cal.Rptr. 864,456 P.2d 136]; People v. Garcia (1965) 63 Cal.2d 265, 266 [46 Cal.Rptr. 324, 405 P.2d 148]; People v. Davis (1965)62 Cal.2d 806, 807 [44 Cal.Rptr. 441, 402 P.2d 129]; People v.Madrid (1965) 62 Cal.2d 602, 603 [43 Cal.Rptr. 638,400 P.2d 750]; People v. Curry (1965) 62 Cal.2d 207, 208 [42 Cal.Rptr. 17, 397 P.2d 1009]; People v. Diehl (1964) 62 Cal.2d 114, 115 [41 Cal.Rptr. 281, 396 P.2d 697]; People v. Johnson (1964) 61 Cal.2d 843, 844 [40 Cal.Rptr. 708, 395 P.2d 668];People v. Tucker (1964) 61 Cal.2d 828, 832 [40 Cal.Rptr. 609,395 P.2d 449]; People v. Casillas (1964) 61 Cal.2d 344, 346 [38 Cal.Rptr. 721, 392 P.2d 521].) In People v. Acosta,supra, 71 Cal.2d at p. 688, we noted that "we have consistently interpreted rule 31(a) as meaning that `whenever possible, [this court] should exercise the jurisdiction conferred upon it by rule 31(a), and grant relief, as a matter of policy, from the late filing of the notice [of appeal].' (People v. Tucker . . .61 Cal.2d 828, 832.)"
The judicial policy underlying the granting of relief in rule 31(a) cases is based on the desire to avoid the forfeiture of substantial rights on technical grounds and the belief that justice demands the consideration of an appeal on the merits. (People v. Acosta, supra, 71 Cal.2d at p. 688.)
In People v. Garcia, supra, 63 Cal.2d at p. 269, we stated that, "Although rule 31(a) contains no express time limitations on its operation, we think an unexplained delay of nearly a year from the time of sentence could constitute a waiver or estoppel." But we accepted a reasonable explanation of the year's delay inGarcia as well as in our previous cases interpreting rule 31(a) because of the settled policy of liberal construction of rule 31(a) and because of the requirement that arises from this policy *Page 299 that any doubts we may have as to whether or not there has been a waiver or estoppel must be resolved in favor of the right of appeal. (People v. Tucker, supra, 61 Cal.2d at p. 832.) In accepting a reasonable explanation of any delay, we have also recognized the disabilities of prison life, the difficulties in preparing a rule 31(a) motion, and the possibility of ignorance of the right to relief under rule 31(a).
Our policy of liberal construction of rule 31(a), which leads us to accept an explanation that refutes the notion of waiver or estoppel, has been further reinforced by our holding that "[t]he first requirement of any waiver of statutory or constitutional rights . . . is that it be knowingly and intelligently made." (In re Walker (1969) 71 Cal.2d 54, 57 [77 Cal.Rptr. 16,453 P.2d 456].)
A review of the facts presented in the instant case in light of the settled policy of liberal construction of rule 31(a) demands granting the relief requested in the instant case as in all our previous cases on rule 31(a). Petitioner has given a reasonable explanation for the delay between the time of his discovery of counsel's error and the time of filing a late notice of appeal.
Sometime in March or April of 1968, petitioner discovered that his attorney had given him erroneous advice on "dead time." Petitioner was unquestionably entitled to relief at this time. As we held in People v. Bailey, supra, 1 Cal.3d at p. 186, "where it is established that a defendant's abandonment of a request to appeal is based on a misapprehension as to the effect of filing an appeal, the waiver of the request is not knowingly and intelligently made, and relief under rule 31(a), absent an effective waiver or estoppel, should be available. . . ."
Petitioner did not lose his right to obtain relief by failing to file a notice of appeal or a motion for relief under rule 31(a) immediately after his discovery of counsel's error. The indigent and uneducated petitioner could not file immediately. Instead, he diligently pursued his remedies as well as he could. He wrote to a legal worker with whom he was acquainted, and he made contact with the inmates who could help him prepare legal papers.
Petitioner did not contemplate filing legal papers himself "[b]ecause I know I couldn't do legal work, I couldn't, I don't know how to do it." Petitioner at that time could read and write but poorly and had a measured grade level of only 6.2.
The majority state that petitioner had attended school to the eighth grade and had done better than average work in some subjects. However, *Page 300 an eighth grade education is far short of the education required to prepare a complicated legal brief. Furthermore, petitioner testified that he always had trouble reading and writing in school. He received B's in math, a subject which would be of no assistance in preparing a legal brief, but failed English, a subject which would have been of some help.
Petitioner testified that he attempted to arrange with various inmates to prepare papers for him. One inmate did agree to help him, but wanted a payment of $60 in advance. Petitioner was forced to wait until he had the $60. It takes no act of judicial omniscience to recognize that earning this amount of money is no mean task behind prison walls where inmates are paid between $0.02 and $0.35 per hour. (Pen. Code, § 2700.)
By the time petitioner had amassed this sum, the writ-writer had himself been placed in maximum security confinement. Petitioner immediately sought the aid of other inmates. Soon after he had retained another jailhouse lawyer, however, he himself was transferred to the adjustment center.
From August 2, 1968, to October 25, 1968, petitioner was in segregation in the adjustment center for disciplinary reasons. In the adjustment center petitioner was confined to his solitary cell 23 hours a day, able to communicate only with inmates in the adjoining cells. For the first 29 days of his confinement in the adjustment center he was, pursuant to prison routine, allowed to have no papers or books in his cell.
The majority state that after the first 29 days in the adjustment center, petitioner was permitted to have books and to do legal work. However, this permission did petitioner no good. He was incapable of understanding law books and of doing legal work by himself.
Petitioner testified that he never read a law book until he started consulting with the people in San Quentin who were helping him write his writs. The law books he then looked at made no sense to him. He testified that he could not even understand a law book when it was read and explained to him. "They tell me something, something similar to my case and go on that point, but really as far as law goes, I don't know what they was talking about."
Petitioner could get no assistance from his fellow inmates in the adjustment center. To the best of his knowledge, no one in the adjustment center was preparing any writs or was capable of helping him prepare one. While in the adjustment center, petitioner could not communicate with the one inmate who had agreed to help him prepare his writ. *Page 301
Immediately after his release from the adjustment center, petitioner again began working on his case with the help of his jailhouse lawyer. Within two weeks of his release he had written his trial attorney for needed papers. Petitioner asked the attorney to send him the transcripts of the trial and commented, "Although you did advise me not to appeal my case, I strongly feel under my present circumstances that my case needs a final determination in the courts."
In a letter dated November 20, 1968, the attorney answered petitioner's letter, explaining that he was sending part of the transcript and that another part was still on loan to other attorneys. The attorney indicated that he would be willing to give petitioner additional information not contained in the transcript if he was bent on planning any legal type of proceeding, but discouraged petitioner from appealing by repeating his erroneous belief that petitioner would be forced to serve "dead time."
The attorney did not offer to represent petitioner on appeal, and petitioner did not feel he could ask for his assistance. He testified that, "I figured Mr. Winters had been appointed by the Court, and I didn't feel that he still had my case since the sentence was over. I didn't feel he still had authority to, you know, I thought maybe I had to retain him, which I didn't have the fee." He stated that he did not want to bother Mr. Winters since he believed that the court would appoint another attorney after he filed a notice of appeal.
On January 17, 1969, soon after receiving the reply from his attorney, petitioner filed the writ prepared for him by another inmate in the Court of Appeal. The writ was denied. Petitioner immediately petitioned for hearing in this court.
On February 24, 1969, with the help of the inmate who had first promised to help him, petitioner filed a supplementary petition in this court. In that petition petitioner set forth, as one reason for not appealing previously, his attorney's belief that he would be serving "dead time" during the entire appellate process. This court denied the petition for hearing on March 19, 1969, two justices dissenting. The instant petition was filed on January 5, 1970.
The majority are distressed by the fact that petitioner's original petition set forth as an explanation of the delay petitioner's reliance on an alleged promise of his attorney to appeal. Petitioner admits that there was no such promise and that this explanation of the delay was false. However, petitioner, an untutored and naive young man, cannot be blamed for the errors in his original brief. They were not made in bad faith. *Page 302
As petitioner explained, "Well, in most of those petitions, as I explained before, another inmate had done it for me, and he was using all methods that he knowed and he had got other guys granted on, and mostly I just read through it and just signed it, not actually knowing what was in, what was actually what it said, because I don't know that much about law."
As soon as the first inmate who had agreed to help petitioner was released from segregation, petitioner corrected the errors in his petition. "Well, the other guy, the first guy, he was released from segregation and he told me I should have waited on him. So, I showed him a copy of what the other guy had filed, the first guy had filed to the District Court. He told me to file a supplementary to the Supreme Court. So he filed a supplementary to the Supreme Court." This supplementary set forth the ground now alleged for relief, ignorance of the error in counsel's advice. Petitioner's claim, as presented in the supplementary and in the instant petition, was found to be a valid claim by the referee.
Petitioner admits that his original petition set forth a false ground for relief, but he should not be precluded from relief when he now sets forth a substantial and truthful ground for relief. The majority expect jailhouse lawyers and uneducated inmates to prepare briefs with the sophistication and integrity of polished practitioners. This is an unreasonable burden.
The majority ignore all the facts which support the reasonableness of petitioner's claim for relief. Although they are willing to make allowances for late filing because of the prison environment and because rule 31(a) requires a sophisticated legal document, they do not give these factors the weight they deserve.
The indigent prison inmate is essentially deprived of the effective assistance of counsel. This deprivation cannot be minimized. The right to assistance of counsel is essential throughout the criminal process and the denial of this right is constitutionally intolerable. (Anders v. California,386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1396].)
In determining whether a defendant who has stated grounds for the filing of a belated appeal should nevertheless be denied relief because of a delay in seeking timely relief under rule 31(a), we must also give great weight to the fact that, unlike a notice of appeal, a petition to file a belated appeal may be a complex and lengthy document. The petition must effectively allege all of the facts (In re Swain, 34 Cal.2d 300 [209 P.2d 793]), and should set forth the relevant legal authorities. The petition is not merely a notice.
It should also be borne in mind that most defendants, if not all, are aware of the possibility of an appeal, but there is grave danger that a *Page 303 petitioner, having learned that he has been wrongfully denied an appeal, will not be aware of the relief available under rule 31(a). This is particularly true in light of the many older cases which state that the filing of a notice of appeal is jurisdictional and that no relief is available from the failure to file a timely notice. (E.g., In re Del Campo, 55 Cal.2d 816, 817 [13 Cal.Rptr. 192, 361 P.2d 912].)
The majority ignore all of the circumstances which support the reasonableness of petitioner's delay merely because the delay came after petitioner's original disability was removed. However, there is no difference between petitioner's delay after discovery of counsel's error and the delays we have accepted as reasonable in previous cases. One disability was removed after petitioner's discovery of counsel's error, but other disabilities remained.
In People v. Garcia, supra, 63 Cal.2d 265, a case quite similar to the case at bar, we allowed for a delay of nearly a year after petitioner received notice that his late notice of appeal was not accepted. Garcia could barely write and read with difficulty. He also had been transferred from prison to prison and spent some time in isolation. In People v. Curry, supra,62 Cal.2d 207, 212, relief was granted despite a 10-month delay in filing in large part because the petitioner there had been emotionally and mentally upset during much of the time. Shorter delays have not been thought to require extensive justification. (See, e.g., People v. Madrid, supra, 62 Cal.2d 602 [five months]; People v. Acosta, supra, 71 Cal.2d 683 [five months]; People v. Davis, supra, 62 Cal.2d 806 [seven months]; People v. Johnson, supra, 61 Cal.2d 843 [seven months]; People v. Rapp (1966) 64 Cal.2d 643 [51 Cal.Rptr. 247,414 P.2d 375] [eight months].)
I am aware that the referee concluded that petitioner's eight-month delay in filing for relief pursuant to rule 31(a) constituted a waiver. However, the referee failed to comment in any way upon the uncontradicted evidence adduced at the evidentiary hearing which accounted for petitioner's having had to wait from April, when he discovered his attorney's erroneous advice, until December or January to file for relief. The referee merely stated his conclusion that the delay constituted a waiver.
The referee's findings, while entitled to great weight, are not binding upon this court. (People v. Bailey, supra, 1 Cal.3d 180, 185-186, fn. 1; People v. Acosta, supra, 71 Cal.2d 683, 687; In re Notz (1965) 62 Cal.2d 423, 425 [42 Cal.Rptr. 321,398 P.2d 593].)
Petitioner's delay through April of 1968 is, of course, adequately explained by his ignorance that his attorney's advice was erroneous. When the further delay is viewed in the light of his limited education, his limited *Page 304 ability to read and write, his inability to prepare a petition under rule 31(a) without help, the evidence as to his efforts to secure help, his confinement to the adjustment center where he was unable to communicate with the inmate who had agreed to assist him, his communication with his attorney shortly after release from the adjustment center, and his filing of the petition for relief shortly after receiving his attorney's answer, I am satisfied that the delay was not unreasonable and that petitioner is entitled to relief under rule 31(a).
Moreover, the instant case is not an appropriate one for finding a waiver or estoppel because petitioner, after discovering that his counsel's advice was erroneous, repeatedly and continually sought to secure an appeal.
I would grant the relief requested by petitioner and give him the right to have his appeal considered on the merits.
Tobriner, J., concurred. *Page 305