People v. Hawkins

PETERS, P. J.

Defendant was charged with the sale and possession of narcotics. He admitted a conviction on a prior addiction charge. He was tried before the court without a jury, and found guilty on the sale count. The possession count was dismissed. He now appeals, contending that the evidence is insufficient to sustain the findings.

At the threshold of this appeal we are met by the contention that the notice of appeal was filed too late. The judgment was entered on July 24, 1957, and the notice of appeal was filed with the clerk of the proper superior court on August 7, 1957. Thus, prima facie, the notice of appeal was filed four days too late. By an augmented record the defendant argues, however, that the notice was constructively filed within the 10-day required limit. We agree with this contention.

The augmented record shows that defendant was taken to the Reception-Guidance Center at San Quentin on July 24, 1957, the day that judgment was entered. That was a Wednesday. The very next day defendant requested, in writing, permission to consult with a staff member about his appeal. On August 1, 1957, a week later, and still within the required 10-day period, defendant deposited signed copies of his notice of appeal with the officials at the center for mailing. He had no envelope or stamp. He requested that it be mailed. Apparently someone at the center misdirected the notice to the District Court of Appeal here in San Francisco, and caused it to be mailed on Monday, August 5,1957. It was finally filed with the clerk of the superior court on August 7, 1957.

The delay in the mailing occurred because, apparently, the notice of appeal did not reach the mail room of the center until late Friday, August 2nd. Since that room is not open

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on Saturday or Sunday the notice was not mailed until August 5, 1957, Monday. It was misdirected to the wrong court by someone in the center, and did not reach the clerk of the superior court until August 7, 1957.

It is apparent that the delay was not the fault of the defendant, but was caused by the acts of the prison officials. Had the notice been properly mailed on August 1st or 2nd it would have been received by August 3rd, the last day for filing. Thus, the defendant deposited the notice with the prison officials well within the 10-day period. He had no control over the acts of the prison officials. Under such circumstances it must be held that the notice was constructively filed within the 10-day period.