People v. Jackson

PETERS, J.

Petitioners, in this consolidated petition, seek relief under rule 31(a) of the California Rules of Court. Under that rule relief may be granted from default in failing to file the notice of appeal required to be filed within 10 days of the time of sentence. It is now settled law that this power to relieve from default should be liberally construed to avoid, if reasonably possible, the loss of the right to appeal. (See

People

v.

Madrid, ante,

pp. 602, 603 [43 Cal.Rptr. 638, 400 P.2d 750], where many of the prior cases so holding are cited and discussed.)

The facts of these eases clearly call for the exercise of the power. The Attorney General and counsel for the petitioners, after examining the records, with commendable objectivity and fairness, have stipulated that without appointing a referee, without placing the eases on the calendar for oral argument, and without the filing of briefs, the causes may be submitted upon the records on file. In a letter to this court dated April 23, 1965, the Attorney General, again with commendable fairness and objectivity, practically concedes that the requested relief should be granted. He states that upon examination of the records and upon independent investigation “I am of the opinion that a result favorable to the People is not reasonably foreseeable in view of the decisions of this court requiring the referee to resolve doubts in favor of the filing of a late notice of appeal.” The same letter continues: “John Bell Jackson [one of petitioners] filed a document which was apparently mislaid by the County Clerk and which can reasonably be construed as a premature notice of appeal from the judgment against him. As to Edward Jackson [the other petitioner] ... I have consulted” with the attorney who represented him on the trial, and while such attorney denies “having promised to file a notice of appeal” and while the

[805]

Attorney General has some evidence of waiver and estoppel "such evidence would not compel a finding in favor of the People and would not justify the delay and expense of a reference hearing.”

In view of these concessions the facts need not be developed in detail. From the records it appears that guilty verdicts were returned against petitioners on January 4, 1963, for murder, kidnaping for ransom, robbing and assault with intent to commit a felony. The petitioners were sentenced February 5, 1963, to life imprisonment without possibility of parole, and to several shorter concurrent sentences. Upon investigation by the Attorney General it was discovered "that a premature notice of intent to appeal was filed with the county clerk on January 7, 1963, by John Bell Jackson; but due to the mishandling of the document by the clerk’s office, no action was taken. ” It is conceded that this document, a valid premature notice of appeal by John Bell Jackson, was mislaid by the clerk. This document should be filed. It should be "treated as filed immediately after the rendition of the judgment” (see rule 31(a)) and thus is within the required 10-day period.