People v. Willmon

PEEK, J. Defendant Craig and his codefendant Willmon appeal from a judgment entered pursuant to a verdict of the jury finding them guilty of grand theft and burglary. Willmon’s appeal appears to have been abandoned and hence must be dismissed. We therefore have confined this opinion solely to the contentions raised in the Craig appeal.

At the outset .of its brief, respondent points out that the judgment appealed from was filed on October 3, 1958, and that the notice of appeal was entered by the clerk on October 14. Respondent feels compelled to so state in order that “. . . the jurisdiction of this court can be properly established ...” The record further shows that following the filing of said notice, and pursuant to a request by Craig, this court appointed counsel to represent him on appeal; that following the filing of respondent’s brief, Craig filed with this court an affidavit wherein he avers that on October 10, 1958, while in custody at the California Medical Facility at Vacaville, ”... I went to the legal clerk’s office at the Reception Guidance Center . . . and I wrote a letter to the County Clerk of Sutter County stating that I wished to appeal my case ... I handed the letter to the legal clerk the morning of October 10, 1958, and he said he would mail it out right away. When the letter was in fact mailed I do not know. If it had been mailed on the 10th, it would have reached the Sutter County Clerk on or before October 13, 1958.” No counter-affidavit or other evidence in opposition has been tendered by the respondent.

This court is thus presented with a situation not wholly unlike that in People v. Tapia, 174 Cal.App.2d 52 [344 P.2d 33]. There it was held under similar circumstances [37]that “. . . appellant made a constructive filing within the prescribed time limit and satisfied the jurisdictional requirement within the rule enunciated in People v. Slobodion, 30 Cal.2d 362 [181 P.2d 868], and later decisions interpreting and applying that rule. [Citing cases.]” Under the facts disclosed here we conclude, as did the court in the Tapia case, that since it is undisputed that appellant’s notice of appeal was delivered to the legal clerk at the facility in ample time to have been delivered to the county clerk, the appellant made a constructive filing within the time prescribed by rule 31 of Rules on Appeal and “. . . satisfied the jurisdictional requirement as contemplated by law.” (People v. Slobodion, supra, p. 368.)

Subsequent to his assignment to represent the appellant, counsel informed the court that he had examined the record, particularly in light of Craig’s contentions that the personal property alleged to have been feloniously taken was obtained by the police unlawfully and that the court erroneously instructed the jury, and found no merit in such contentions. Our independent examination of the record compels a like conclusion.