People v. Camarillo

PETERS, J. Petitioner seeks an order permitting him to file a late notice of appeal pursuant to rule 31(a) of the California Rules of Court. Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment but empowers appellate’ courts to grant relief from default in a proper case. This power is to be liberally exercised. (People v. Ruch, 65 Cal.2d 138, 139 [52 Cal.Rptr. 585, 416 P.2d 817].) Under this liberal rule petitioner has presented a proper case for relief.

In 1965 petitioner, then age 17, was charged with murder and felonious assault with a deadly weapon (Pen. Code, §§ 187, 245). He pleaded not guilty, and, at trial before a jury, was represented by private counsel retained by petitioner’s family. The jury’s verdicts found petitioner guilty of second degree murder and of the assault. He was sentenced November 29, 1965, and no notice of appeal was filed with the trial court.

On April 25, 1966, less than five months later, petitioner filed with the Court of Appeal, Second District, an application for leave to file a late notice of appeal on the ground that [457]lie had requested his trial counsel to appeal, but he had not done so. The Court of Appeal denied relief and we granted a hearing because the petition filed here alleged a prima facie case for relief. (People v. Curry, 62 Cal.2d 207 [42 Cal.Rptr. 17, 397 P.2d 1009].) To ascertain the facts we appointed as referee the Honorable Thomas P. White, retired Associate Justice of this court. A hearing was held at which petitioner was represented by counsel. The People were represented by the Attorney General’s office. Testimony was taken from petitioner, who testified in Spanish through an interpreter, and from his trial attorney. Based on the evidence there produced Justice White submitted proposed findings of fact, to which neither petitioner nor the Attorney General have filed objections. Counsel for both parties have also waived filing of briefs and oral argument. (Cf. People v. Rapp, 64 Cal.2d 643, 644 [51 Cal.Rptr. 247, 414 P.2d 375]; In re Notz, 62 Cal.2d 423, 425 [42 Cal.Rptr. 321, 398 P.2d 593].) These stipulations have expedited the determination of this case.

The referee found that immediately after the jury had returned its guilty verdicts, petitioner asked his trial counsel, in the courtroom, to appeal. Counsel replied that the case could be appealed, that there were substantial and meritorious grounds for appeal, but that he would not prosecute the appeal himself unless paid a fee of $750. Petitioner requested that the lawyer contact petitioner’s family, who had hired him in the first place. Counsel promised to do so. Thereafter petitioner had no further conversations with his attorney.