People v. Madrid

PETERS, J. Petitioner seeks relief from his default in failing to file his 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 permits relief from such a default in a proper case. (People v. Casillas, 61 Cal.2d 344 [38 Cal.Rptr. 721, 392 P.2d 521].) The power thus conferred should be liberally exercised to avoid, if reasonably possible, the loss of the right to appeal. Many of the prior cases applying that liberal rule of construction have been cited and reviewed in People v. Curry, ante, p. 207 [42 Cal.Rptr. 17, 397 P.2d 1009], (See also In re Notz, ante, p. 423 [42 Cal.Rptr. 321, 398 P.2d 593]; People v. Collier, ante, p. 543 [43 Cal.Rptr. 1, 399 P.2d 569]; and People v. Krebs, ante, p. 584 [43 Cal.Rptr. 331, 400 P.2d 323].)

In the Curry case, supra, ante, at page 210, it was stated: “Under the rules of these cases it is now settled that where there is a request to appeal within the 10-day period by the defendent, and a promise of the attorney to do so, or where there is such a promise but no such request, or where there is such a request but no promise, absent grounds of waiver or estoppel, the defendant is entitled to relief.”

In People v. Diehl, ante, pp. 114, 117-118 [41 Cal.Rptr. 281, 396 P.2d 697], the duty of the trial attorney in such cases was stated as follows: “ Of course, the trial attorney is under no obligation to represent the defendant on the appeal, but where the defendant clearly indicates. . . that he desires to appeal, the trial attorney is under a duty not to ignore that [604]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. ’ ’

The rides of these eases are here applicable. The record shows that on February 24, 1964, defendant, in the Superior Court of Los Angeles County, was sentenced to the state prison. No notice of appeal was offered for filing until July 20, 1964. Filing was refused, whereupon this proceeding was commenced.

The Honorable Thomas P. White, Retired Associate Justice of the California Supreme Court, was appointed as a referee to ascertain the facts. At the hearing before him the defendant testified that immediately after being sentenced, and while still in the courtroom, he had a conversation with his trial attorney, in which he asked the attorney to appeal, and that the attorney promised to do so. The attorney, while admitting a conversation with defendant at that time and place, denied that he then, or at any time, promised to appeal. He testified that he told defendant an appeal would lack merit, and instructed him about the procedure in reference to an appeal. Admittedly, however, the attorney did not then, or at any time, give to defendant a copy of the information, a record of the preliminary hearing, or any portion of the file in the case. Nor did he inform defendant of the form or required contents of a notice of appeal. The referee resolved the conflict in favor of defendant. He found that “Petitioner did tell his attorney he wanted to appeal and claims the attorney stated he would do so.” That finding is supported by the record, and, although based on conflicting evidence, under the applicable rules of construction, was properly resolved in favor of protecting the right to appeal. The finding is adopted as the finding of this court and is to the effect that within the 10-day period the defendant requested his trial attorney to appeal and reasonably believed that his attorney would do so. Under the rules already stated, absent grounds of waiver or estoppel, the defendant is entitled to relief.