Isenberg v. Superior Court

WHITE, J. A rehearing was granted in this cause, that we might give further consideration to petitioner’s contention that the provisions of section 1404 of the Penal Code absolve him from the necessity of filing a notice of appeal in writing within the time prescribed by law. We are satisfied that the provisions of the cited section have no application to the proceedings here under review and are of the opinion that the proper conclusions were reached in our former opinion on all points raised. We therefore adopt said opinion as a part of this opinion upon rehearing. The former opinion follows:

“Mandamus to compel the Appellate Department of the Superior Court of Los Angeles County to hear and determine certain appeals.

“The record presents the following facts: Petitioner was convicted in the justice’s court of San Jose township in Los Angeles county, on July 28, 1939, of certain misdemeanor violations charged in four complaints filed against him. On said date and immediately following the pronouncement of judgment, petitioner, as defendant in said eases, gave oral notices of appeal, which were entered by the clerk in the docket of the justice’s court of said township. Thereafter, some eight days later, on August 5, 1939, defendant filed written notices of appeal and subsequently perfected his record, and the causes came before the appellate department of respondent court, wherein decision was rendered on September 14, 1939, holding that the written notices of appeal had been filed too late, that the oral notice could not correct this tardiness, and that said appellate department of the superior court was therefore without jurisdiction to pass upon said appeals. Thereupon petitioner sought and obtained from this court an alternative writ of mandate and respondent court has filed a general demurrer to the petition.

“ It is the contention of respondent court that rule 2 of the rules of the judicial council of the state of California pertaining to criminal appeals to the superior court from inferior courts establishes the correctness of the decision of such court in holding that it was without jurisdiction to proceed with the appeals herein. In this claim respondents must be upheld. Subsection 5 of section 1a of article VI of the Constitution of this state expressly authorizes the judicial [108]council to adopt rules of practice and procedure for the several courts not inconsistent with the rules that are now or that may hereafter be in force. To give effect to this constitutional provision, the legislature in furtherance thereof amended section 1468 of the Penal Code in 1935 to provide that ‘Appeals to the superior courts shall be heard and determined, the decisions thereon shall be remitted to the inferior courts and the records on such appeals shall be made up and filed in such time and manner as shall be prescribed in rules to be promulgated by the Judicial Council . . . ’ (Italics added.) Pursuant to the authority thus conferred, the judicial council promulgated rules for ‘ Criminal Appeals to the Superior Court from Inferior Courts’, which rules became effective on July 1, 1936. Among those rules we find rule 2 providing in the following language the manner in which an appeal shall be taken to the superior court: