People v. Wychocki

Opinion

KING, J.

Stanley H. Wychocki appeals from a judgment of imprisonment for lewd and lascivious acts upon a child under 14 (Pen. Code, § 288, subd. (a)) and oral copulation with a child under 14 (Pen. Code, § 288a, subd. (c)). We reverse the judgment as to the sentence imposed and remand the cause for resentencing.

According to a probation report, Wychocki molested his niece in June 1979 when she was nine years old. In April 1985, when an officer investigated the incident, the victim told the officer that Wychocki had fondled her breasts and vagina, played with her anal area, committed oral copulation upon her

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vagina, and attempted to place his tongue on her anus. When the officer interviewed Wychocki, he admitted committing the oral copulation.

Wychocki pleaded nolo contendré to both counts. On October 2, 1985, the court sentenced him to two concurrent six-year prison terms.

I

Preliminarily, the Attorney General contends the appeal must be dismissed because Wychocki’s notice of appeal was not timely filed.

When persons are in custody, however, an appeal is timely if the notice of appeal was delivered to the inmate’s custodian within the time for appeal.

(People

v.

Milton

(1969) 270 Cal.App.2d 408, 410, fn. 1 [75 Cal.Rptr. 803].) Based on defense counsel’s declaration in support of a request for findings on appeal (Cal. Rules of Court, rule 23), we find that on November 26, 1985, Wychocki delivered to a guard an envelope containing the notice of appeal, addressed to his trial attorney; the guard did not post the envelope until December 2; the trial attorney received the envelope on December 4 and filed the notice of appeal that day.

Accordingly, the appeal is not to be dismissed. The notice of appeal was delivered to Wychocki’s custodian within the time for appeal.