Gonzales v. Superior Court

SEAWELL, J.

The sole question presented by this petition for a writ of mandate is whether the curative provisions of section 473 of the Code of Civil Procedure are applicable to criminal proceedings. The specific problem here involved arises under the following circumstances:

Petitioner was convicted of a felony and sentence was pronounced. Within due time, and acting under section 1239 of the Penal Code, he filed his notice of appeal. He failed, however, to comply with rule 2, section 7, of the Rules for the Supreme Court and District Courts of Appeal, which provides in part as follows:

“Upon an appeal by the defendant from a judgment of conviction . . . the appellant must, within five days after giving notice of the appeal, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the

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appellant relies, and designate what portions of the phonographic reporter’s notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal shall be dismissed; provided, that the appeal shall not be dismissed for any defect in the statement of such grounds or points which does not affect the substantial rights of the respondent.” Although petitioner failed to file the statement of the grounds of his appeal and failed to designate in the manner required in the above rule the portions of the transcript he desired to have transcribed, he did, in due time, request a complete transcript. The transcript has been duly prepared and is now on file in the appellate court. Thereafter the petitioner discovered his error and promptly petitioned the trial court to be allowed to show, pursuant to section 473 of the Code of Civil Procedure, that the omission to file the documents required by the rule was due to the clerical error, inadvertence and excusable neglect of counsel. The trial court denied the relief requested, on the ground that it did not have jurisdiction to hear the motion, whereupon petitioner applied for this writ of mandate to compel the trial court to entertain the motion and to decide it upon its merits.

Under the express provisions of the rule, as above quoted, failure to comply with the provisions thereof is ground for dismissal of the appeal. Many appeals have been dismissed for like reason.