People v. Flanagan

PETERS, J. This is another in a series of eases involving the proper interpretation and application of rule 31(a) of the California Rules of Court.1 Several cases have already been decided involving the general problem (People v. Casillas, 61 Cal.2d 344 [38 Cal.Rptr. 721, 392 P.2d 521]; People v. Tucker, 61 Cal.2d 828 [40 Cal.Rptr. 609, 395 P.2d 449] ; People v. Johnson, 61 Cal.2d 843 [40 Cal.Rptr. 708, 395 P.2d 668]).

The facts of this case bring it within the rules announced in those cases.

Petitioner was sentenced for second degree murder on July 19,1963, after a trial without a jury. He was represented during the trial by attorney Bernard W. Minsky, who had been retained and partially compensated by the two sisters [65]of petitioner. No notice of appeal was filed within the 10-day period provided by rule 31(a). In September of 1963 petitioner first discovered that an appeal had not been filed and in October 1963 petitioner attempted to file a late notice of appeal. He now seeks permission to file that late notice under rule 31(a).

The referee appointed by this court to ascertain the facts, the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin, found, after a hearing, that immediately after petitioner was sentenced on July 19, 1963, Mr. Minsky said to him, “ ‘Don’t worry—I’ll be up to see you in a couple of days. ... I am going to appeal’, and thereupon patted the applicant on the back.”

The referee also found that “Attorney Minsky said he would file a Notice of Appeal immediately—or right away. . . .

“Attorney Minsky told Applicant that he would speak with his sisters concerning an appeal. . . .

“. . . that he thought Applicant had very good grounds for appeal and that he would be up in a few days.” Minsky, within the vital 10-day period, also told the sisters he would see the defendant at the county jail, but he did not attempt to do so because of the rush of business until after the time for appeal had elapsed and until after petitioner had been transferred to the state prison. The referee also found that “Attorney Minsky did not tell Applicant how to appeal nor in what form he should appeal, nor anything concerning the time of filing a Notice of Appeal. . . .

“Mr. Minsky did not notify Applicant during the ten-day period that he would not handle the appeal. . . .