People v. Johnson

PETERS, J. This is another in the series of eases involving the proper interpretation and application of rule 31(a)1 of the California Rules of Court. Two cases involving these problems have already been decided. (People v. Casillas, ante, p. 344 [38 Cal.Rptr. 721, 392 P.2d 521]; People v. Tucker, ante, p. 828 [40 Cal.Rptr. 609, 395 P.2d 449].) The Casillas ease, supra, determined that, in a proper ease, rule 31(a) confers the power on an appellate court to grant relief from a late filing of the notice of appeal in a criminal case, and that such power should be liberally exercised so as to protect the right of appeal. The Tucker case, supra, held that where the defendant, during the 10-day period in which the notice should be filed, tells his trial attorney that he desires to appeal, and the attorney states that he will do so but does not, and there are no grounds for waiver or estoppel, the court should grant relief.

The facts of this case bring it within the rule of the Tucker case, supra. Petitioner was convicted of robbery and sentenced on June 8,1962. He was then, and during his trial, represented by a deputy public defender from Los Angeles County. The referee appointed by this court to ascertain the facts, the Honorable Edward Henderson, Retired Judge of the Superior Court of the County of Ventura, found that on the day judgment was rendered, "the defendant stated to the attorney who then represented him, that he wanted to appeal the ease and win it if he had to go all the way because he got a miscarriage of justice.” The referee also found that on [845]that same day “the attorney who then represented the defendant, stated that he would take care of the appeal. The said attorney failed either to file a notice of appeal or to again see or communicate with defendant or do anything further respecting Ms case. ” In a footnote to this finding the referee points out that the trial attorney was a public defender “and has no recollection of making any promise to appeal the case of defendant. It was then the policy of Ms office to perfect and prosecute only those appeals deemed to be meritorious.”

The referee also found that the explanation of the delay in presenting the application for relief was that: “The defendant Johnson has been continuously incarcerated in the state penitentiary since approximately two weeks subsequent to the rendition of judgment. He is an indigent without funds with which to hire a private attorney. During the interval between the date of sentence and about the month of January, 1963, the defendant relied upon the promise of his trial lawyer to take an appeal and believed that it was taken and pending. The lawyer’s failure to communicate with defendant during that period finally raised a doubt in his mind whether an appeal had actually been taken. This influenced defendant to write and mail successive letters to Ms former lawyer, dated January 12, 1963, and April 22nd, 1963, respectively, in which he made inquiry respecting the status of Ms appeal. These letters remained unanswered because the former attorney was unaware of their existence or transmittal. The defendant was deprived of legal assistance or guidance from that source.