People v. Curry

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 There have been several recent cases interpreting this rule and determining when it is operative.

In People v. Casillas, 61 Cal.2d 344 [38 Cal.Rptr. 721, 392 P.2d 521], the validity of the rule was upheld, and it was determined that it should be liberally construed so as to protect, where possible, the right of appeal. In that case during the 10-day period the attorney promised to appeal but did not do so. Relief was granted.

In People v. Tucker, 61 Cal.2d 828 [40 Cal.Rptr. 609, 395 P.2d 449], the defendant told the attorney he wanted to appeal and claimed the attorney stated that he would do so. The attorney denied making such a promise. This conflict was resolved in favor of the defendant. It was held that, where the defendant asks his trial attorney to appeal and the attorney promises to do so, in the absence of an estoppel, relief should be granted.

People v. Johnson, 61 Cal.2d 843 [40 Cal.Rptr. 708, 395 [209]P.2d 668], was quite similar to the Tucker case, supra. The defendant stated that he told his attorney that he desired to appeal and that the attorney stated he would appeal. The attorney did not deny making such a promise hut simply testified that he had no recollection of doing so. Belief was granted. In this case there was over a seven-month delay between the date of sentence and the date the delayed notice was presented. This delay was excused on the ground that the defendant had relied reasonably on the attorney's promise, and was in prison during that period.

In People v. Flanagan, ante, p. 63 [41 Cal.Rptr. 85, 396 P.2d 389], the defendant testified that immediately after sentence the attorney volunteered a statement telling defendant not to worry and that he was going to appeal. There was no evidence of a request to appeal by defendant. The attorney denied making the promise. This conflict was resolved in favor of defendant. Belief was granted, the court holding that a request was not necessary.

In People v. Diehl, ante, p. 114 [41 Cal.Rptr. 281, 396 P.2d 697], the defendant told his attorney he wanted to appeal, and the attorney admitted that this was so. Both the attorney and the petitioner admitted that there had been no promise by the attorney to appeal. The court held that an express promise was not necessary, and reversed a conclusion of the referee to the effect that defendant’s belief that the attorney would appeal, in the absence of a promise, was not reasonable, holding that it was. Belief was granted. It was held (p. 118) that “where the defendant clearly indicates,. . . that he desires to appeal, the trial attorney is under a duty not to ignore that request. The trial attorney is under a duty either to file the notice of appeal, or to instruct the defendant as to the proper procedure, or to see that the defendant has counsel to do these things for him.” Belief should be granted where a request is made by the defendant although the attorney makes no express promise to appeal.