People v. Rapp

PETERS, J. Petitioner applies for relief under rule 31 (a) of the California Rules of Court, or for an order directing the Clerk of the Superior Court of the County of Orange to file a notice of appeal claimed by petitioner to have been constructively filed by him within the time required by law.

Counsel for the parties have stipulated as to the facts and have agreed to submit the case on that stipulation. Both counsel are to be commended for such procedure. It has eliminated the necessity of appointing a referee, with a consequent saving of time and money, and has conserved the time of this court by not requiring it to calendar the cause.

Under the stipulated facts, petitioner is clearly entitled to relief. He was-charged and convicted in the County of Orange of violations of sections 288 and 288a of the Penal Code. He was sentenced to prison on February 19, 1965. On March 3, 1965, two days late, the clerk of the superior court of that county received a notice of appeal from petitioner which was stamped indicating that it had been received by the officials at Chino for mailing on February 28, 1965. The clerk refused to file it, and notified petitioner that the notice had been received late and that relief from such late tender should be sought in the appellate court. Such relief was not sought until October of 1965, some eight months later.

The stipulation shows that three days after the date of sentence, petitioner was visited by Attorney Cadwell. Petitioner told Cadwell that he wanted to appeal, and asked Cadwell to handle it for him. The attorney quoted a fee. Petitioner suggested that Cadwell contact a Mrs. Valentine to see if she could raise the fee. Mrs. Valentine told the attorney that she could not raise the money to finance the appeal. The attorney [645]then told Mrs. Valentine to tell petitioner that he must file his notice of appeal within 10 days after February 19th.

In the meantime, petitioner had been transferred from the county jail to Chino, and Mrs. Valentine was unable to visit him there until Sunday, February 28, 1965. This was the ninth day after the date of sentence. Mrs. Valentine conveyed the message from the attorney, and on that same day petitioner signed a form notice of appeal. He then tried to reach his corrections officer, a Mr. Fleet, who was not then on duty. At petitioner’s request, a sergeant at the prison contacted Fleet at his home. Fleet informed the sergeant to have the copies of the notice of appeal time-stamped and placed in the mail. These things were done by the sergeant. But because the 28th was a Sunday there was no outgoing mail from Chino on that day. As a result the notice of appeal was not received by the Clerk of the Superior Court of Orange County until March 3, 1965. This was apparently two days late, hut as already noted, the notice of appeal had been time-stamped as received for mailing at Chino on the 28th. The clerk marked the notice as received March 3, 1965, but did not file it. He notified petitioner of the late filing procedure to be followed in the appellate court. Mr. Fleet, petitioner’s correction counselor, immediately wrote the clerk explaining the circumstances surrounding the mailing of the notice of appeal, but the clerk responded that the notice could not be filed without an order from the appellate court.