People v. Krebs

PETERS, J.

Defendant seeks relief from his default in failing to file his notice of appeal in a criminal case within the

[585]

10-day limit specified by rule 31(a) of the California Rules of Court. That rule provides for relief from default in a proper case. In determining whether such relief should be granted it is now settled law that the rule should be liberally construed to protect the right of appeal where reasonably possible, and to that end doubts should be resolved in favor of the defendant. (See review of eases in

People

v.

Curry, ante,

p. 207 [42 Cal.Rptr. 17, 397 P.2d 1009]; see also

In re Notz, ante,

p. 423 [42 Cal.Rptr. 321, 398 P.2d 593].) It is also settled that, absent grounds of waiver or estoppel, the defendant is entitled to relief where he requests his trial counsel, within the 10-day period, to appeal, and the attorney does not do so, even though the attorney makes no express promise to appeal.

(People

v.

Curry, supra, ante,

p. 207.)

This is such a case. The referee appointed by this court to ascertain the facts, the Honorable Thomas P. White, Retired Associate Justice of the California Supreme Court, on competent and sufficient evidence found that defendant requested his counsel to appeal, and that counsel by his actions led defendant reasonably to believe that a notice of appeal would be filed. The referee has recommended that relief be granted. With commendable fairness the deputy attorney general representing the interests of the state concedes that the findings are supported, and that under the rule of the

Curry

case,

supra,

defendant is entitled to relief. The basic findings are not only supported but are based on practically uncontradicted testimony. They are adopted as the findings of this court.