People v. Diehl

PETERS, J. Petitioner seeks relief from his default in failing to file a notice of appeal in a criminal case within the 10-day period specified by rule 31(a) of the California Rules of Court. That rule provides for relief from default in a proper case.1 It is now settled that the power conferred by that rule should be liberally exercised to avoid, if possible, the loss of the right to appeal. (People v. Casillas, 61 Cal.2d 344, 346 [38 Cal.Rptr. 721, 392 P.2d 521] ; People v. Tucker, 61 Cal.2d 828, 831 [40 Cal.Rptr. 609, 395 P.2d 449]; see also People v. Johnson, 61 Cal.2d 843, 844 [40 Cal.Rptr. 708, 395 P.2d 668].) These cases have determined that when the trial attorney expressly agrees, within the 10-day period, to appeal, and does not do so, and the defendant is free of fault, relief should ordinarily be granted. The present case involves a somewhat different phase of the problem.

Defendant was tried before a jury in San Francisco, and convicted of manslaughter. His trial attorney was Milton Stern, Jr. The trial was hard fought. Several times during the trial the attorney, in defendant’s presence, or in the presence of defendant’s wife, stated that the deputy district attorney or the judge had committed serious error, and that, if convicted, there were good reasons for an appeal. At all times here relevant attorney Stern was definitely of the opinion that petitioner had good grounds for an appeal.

Petitioner was sentenced on October 14, 1963. Immediately thereafter, in the courtroom, he had a conversation with Attor[116]ney Stern. As a result of that conversation he believed a notice of appeal would be filed by Stern. That was the last time he saw Stern during the 10-day period, because he was transferred to Vacaville on October 15th. Through the prison office, as a result of his inquiry, he was informed on October 28th that no appeal had been taken. He immediately attempted to file such a notice (it was received by the county clerk on November 4th). He was correctly informed that the notice was late, and relief, if any, had to be secured from the appellate courts.

This court appointed as its referee the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin, to determine the facts. A hearing was had at which both Attorney Stern and petitioner testified. There is very little conflict in their testimony.

The referee found the facts to be that, on October 14, 1963, immediately after sentence was pronounced, petitioner told Stern that he thought he had sufficient grounds to appeal and wanted to appeal. This was the only conversation he had with Stern during the 10-day period. Stern admitted that Diehl told him that he wanted to appeal. Both petitioner and Stern testified that during the conversation of the 14th Stern told petitioner that he had “had it”; that he would not represent him on the appeal, and that petitioner could get any attorney he wanted. Both were agreed that Stern did not expressly state that he would file the notice of appeal, nor did he state that he would not. Petitioner testified that because the lawyer had told him several times during the trial that he had good grounds for the appeal, and because of the conversation of the 14th, he “presumed” that Stern would protect him by filing the notice, although he knew that Stern would not represent him on the appeal. Both testified that Stern did not inform petitioner how to file the appeal. He did not tell him the time within which to appeal or where it should be filed, or what the notice should contain. Stern admitted that he did not turn over his file to petitioner, and also stated that if he had analyzed the problem then as he now sees it he would have filed the notice of appeal.