People v. O'Neil

PETERS, J. Petitioner seeks relief under rule 31(a) of the California Rules of Court from his default in failing to file his notice of appeal within 10 days from the date of judgment as required by rule 31(a).

In his petition for a hearing in this court petitioner asserted that, during the vital 10-day period, he had told his attorney, the public defender, that he desired to appeal, and asked the attorney to appeal or to tell him how to do so; that the attorney did neither. It was also averred that after the date of judgment and while he was still in the county jail (presumably within the 10-day period), he wrote out a notice of appeal, placed it in the mail slot, saw the jail attendant pick it up, and he believed it had been picked up for mailing. These facts, if true, and if seasonably urged, would have entitled petitioner to the relief requested. (People v. Diehl, 62 Cal.2d 114 [41 Cal.Rptr. 281, 396 P.2d 697]; People v. Madrid, 62 Cal.2d 602 [43 Cal.Rptr. 638, 400 P.2d 750]; People v. Collier, 62 Cal.2d 543 [43 Cal.Rptr. 1, 399 P.2d 569]; In re Gonsalves, 48 Cal.2d 638 [311 P.2d 483].) To ascertain the truth of these alleged facts we appointed the Honorable Warren Steel, Retired Judge of the Superior Court of Yuba County, as referee and submitted to him the following six questions:

1. Within 10 days after rendition of judgment, what, if anything, did petitioner state to his attorney in regard to an appeal ?

2. Within this 10-day period, what, if anything, did the attorney say or do in regard to an appeal?

3. Within the 10-day period, did petitioner write out a notice of appeal and, if so, what efforts were made to forward the notice to the clerk of the court ?

4. After his arrival at the Vacaville Medical Facility, was petitioner told by either the officers or personnel of the facility that it was then too late to perfect an appeal ?

5. What are the general grounds upon which the proposed appeal is to be predicated ?

6. Are there any grounds for holding that petitioner is estopped or has waived his right to move for a delayed appeal at this time?

[668]After a full hearing, at which petitioner, represented by counsel, was present and testified, the referee found in reference to question number 1 that ‘‘ nothing was said by petitioner to his attorney in regard to an appeal. ’ ’ In reference to question number 2 the referee found that during the 10-day period the attorney said nothing about an appeal; that during this period the petitioner did express to the attorney dissatisfaction with the result obtained, and stated that a private attorney rather than the overworked public defender might have done a better job. In reference to question number 3 the referee found that petitioner claims to have written and mailed a letter of inquiry to the Clerk of the Supreme Court of California, at Sacramento, asking for advice about an appeal. In answer to question number 4 the referee found that after petitioner had arrived at Vacaville he was told by some attaché of the library or by an inmate that it was too late to appeal. As to question number 5 the referee found that the only possible ground urged that is legally permissible on such an appeal is the charge that he was inadequately represented by counsel when he changed his plea from not guilty to guilty. In regard to question number 6 the referee found there were no grounds for estoppel or waiver, and that petitioner had diligently pursued his rights.