People v. Abrams

PETERS, J.

This is a petition for relief under rule 31(a) of the California Rules of Court.

The problem uresented is purely factual. Petitioner alleged that immediately after sentence, and well within the 10 days in which to appeal, he mailed a communication to the trial judge which, while ambiguous, could reasonably be interpreted as a request to notify the clerk of the superior court that petitioner appealed. Had such a communication been in fact mailed, he would be entitled to the relief requested. It was alleged that this notice was “mailed” by enclosing it in a stamped envelope addressed to the judge and leaving it inserted in the cell bars in the usual place where mail was placed for collection.

To determine the truth of these allegations, we appointed the Honorable Thomas P. White, Retired Associate Justice of this court, as referee. Extensive hearings were held, at which petitioner testified and was represented by appointed counsel, and other witnesses were called. After a careful examination and analysis of the lengthy record, the referee found that " at no time while confined in the Santa Barbara County Jail prior to rendition of Judgment, nor within ten days thereafter did Defendant do anything to file a Notice of Appeal. That Defendant’s sole and only concern in the event of his conviction was to obtain probation and the advantage afforded by the provisions of Section 1168 of the Penal Code.” The referee also found that petitioner “is estopped and has waived his rights to move for a delayed appeal at this time. ’ ’

These findings of the referee, although supported, are, of course, not binding upon us, but they are entitled to great weight.

(In re

Nots, 62 Cal.2d 423, 425 [42 Cal.Rptr. 321, 398 P.2d 593].)

Here the problem turned largely upon the credibility of

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petitioner. He told a most detailed story that was not corroborated in any material degree. He testified that weeks before his trial he prepared and addressed a letter by name to Judge Churchill, the judge who later tried him, requesting that an appeal be filed. At the time this letter ivas supposedly prepared and addressed, Judge Churchill, who was not a Santa Barbara County judge, had not yet been assigned to sit in that county. Defendant testified that this letter was prepared in advance of his trial to be mailed only in the event of his conviction. There is no evidence that such a letter was ever received by the judge or the clerk.