People v. Flores

BRAY, P. J.

Appeal by defendant in propria persona from a superior court order correcting an abstract of judgment.

Questions Presented

1. Should the appeal be dismissed for alleged failure to file notice of appeal in time and to cite authorities in opening brief ?

2. Power of court to correct an abstract of judgment.

1.

Should Appeal Be Dismissed f

No. It appears that while defendant’s notice of appeal did not reach the county clerk’s office until 4 days after

[612]

the 10 days prescribed by rule 31, Rules on Appeal, the records and procedures of the prison where defendant is incarcerated indicate that defendant presented his notice of appeal to the prison authorities on the 10th day after judgment entered. It was mailed the next day (a Friday) and was received by the county clerk on the following Monday. This brings the case directly within the ruling in

People

v.

Dailey,

175 Cal.App.2d 101, 107 [345 P.2d 558], where we held “delivery by defendant of his notice of appeal to the prison authorities on the tenth day was a constructive filing in the county clerk’s office as of that day."

Defendant’s opening brief cites no authority to support his contention that the trial court had no power to correct the judgment (possibly, because there is none). As stated in

People

v.

MacArthur

(1954), 125 Cal.App.2d 212, 217 [270 P.2d 37], this court could, if it wished, dismiss the appeal because of this lack of citation of authorities. However, the matter is one in the discretion of this court and we prefer to consider the contention urged.