People v. Thornton

THE COURT.

This court has received a document headed “Ed Mack Thornton, Plaintiff-Appellant vs. Clerk of the Superior Court William G. Sharp, Respondent-Defendant, Petition for Writ of Mandamus,” which may be regarded as a petition under California Rules of Court, rule 31(a) for relief from a late filing of notice of appeal from the order granting probation, entered May 21, 1963, and the judgment entered April 15, 1964, and the order of December 1, 1964, denying a “Petition for Writ of Error Coram Nobis.”

An examination of superior court file No. 270892 discloses the following: The petitioner was charged with and found guilty of a violation of section 11531 of the Health and Safety Code. By an order pronounced May 16, 1963, and entered May 21, 1963, proceedings were suspended and petitioner was placed on probation for five years. No appeal was taken from the order. On April 9, 1964, probation was revoked and petitioner was sentenced to state prison. This judgment was entered April 15, 1964. No appeal was taken. On October 21, 1964, the clerk of the superior court received from petitioner a letter in which he asked for an estimate of the cost of preparing and transmitting to him the proceedings of the superior court in his case and another case in which he had been charged with violation of Penal Code, section 12021. Nothing was said about an appeal. The clerk responded promptly with a letter giving the names and addresses of the court reporters and advising petitioner to make arrangements directly with them. On December 1, 1964, the clerk received from petitioner a notice of appeal which declared that petitioner “hereby Appeals ... from the Judgment therein entered in the said Superior Court on the 16 day of March, 1963.” (He must have meant May 16. The information was not filed until March 14, 1963.) This notice of appeal contains nothing to indicate that petitioner believed any earlier notice had been filed on his behalf. The clerk notified petitioner that his

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notice had been received but not filed under rule 31(a). On December 1, 1964, the superior court also received from the petitioner a document called “Petition for Writ of Error Coram Nobis” which contained, among other things, the statement that petitioner had assumed, until August 18, 1964, that his trial attorney had filed a notice of appeal. This so-called petition for