Mendez v. Superior Court

SHINN, P. J. Jose Angel Mendez, an inmate of a state prison, seeks a writ of mandate requiring the clerk of the superior court to file a notice of appeal from an order denying his motion to vacate a judgment sentencing him to state prison and to prepare and certify a record on appeal. Petitioner mailed to the clerk a notice of motion together with a written motion to vacate the judgment, enclosing therewith a notice that he “hereby appeals to the District Court of Appeal of the State of California, Second Appellate District,- from the Order Ip the aforementioned Superior Court denies the petition in the above entitled cause. This Notice of Appeal, [466]Grounds of Appeal and Application for Clerk’s and Reporter’s Transcript on Appeals, is to be dated and Filed Only in the event that the above entitled cause is denied.” The notice was addressed to the court, the county clerk and the district attorney. The motion was duly heard and denied and the minutes say “The Court finds that the purported notice of appeal is premature and does not constitute a notice of appeal.”

The question is whether the steps taken were sufficient to cause an appeal to be lodged in this court. We think they were sufficient.

Rule 31 of Rules on Appeal in Criminal Cases provides that a notice of appeal be filed within 10 days after the rendition of the judgment or the making of the order. Under ordinary circumstances failure to file a notice within the limited time after rendition of the judgment or making of the order would be fatal to an appeal. But inmates of state prisons encounter difficulties and handicaps which may not be ignored in the decision of our question. As a rule they are not represented by counsel and have prepared their moving papers in the prison in accordance with restrictive prison rules. The law does not require that notice of the court’s ruling on a motion be given to the prisoner and it may not be presumed that notice will be given. The prisoner’s situation is to be considered with respect to his right to notice ; and he has no such right. If the clerk voluntarily sends him a notice it may or may not be received in time for him to prepare and forward a notice of appeal. He may or may not receive the prompt assistance of prison authorities in the forwarding of a notice of appeal. If he relies upon but does not receive voluntary cooperation in these matters he is helpless and without means to prevent the loss of his right of appeal through the expiration of time.

The problem is not a new one. It is a somewhat common practice for prisoners to mail a notice of appeal with their moving papers on motions to vacate judgments or orders. Some trial courts cause the notices of appeal to be filed and treat them as valid; others decline to permit them to be filed for the reason that they have been presented prematurely, and in the latter cases the notices are regarded as if they had been filed too late. The two situations are obviously quite different, since the limitation of time for filing the notice goes to the jurisdiction of a reviewing court to entertain an appeal. Its purpose, of course, is to facilitate the disposition of ap