Benoit, In re

• Decision Date: 24 September 1973
• Docket Number: Cr. 16642 and 16627
• Citation: 10 Cal.3d 72,514 P.2d 97,109 Cal.Rptr. 785
• Court: California Supreme Court
• Parties: , 514 P.2d 97 In re Ray Edward BENOIT on Habeas Corpus. In re Richard WYCKOFF on Habeas Corpus.

Page 785

109 Cal.Rptr. 785

10 Cal.3d 72, 514 P.2d 97

In re Ray Edward BENOIT on Habeas Corpus.

In re Richard WYCKOFF on Habeas Corpus.

Cr. 16642 and 16627.

Supreme Court of California,

In Bank.

Sept. 24, 1973.

Rehearing Denied Oct. 24, 1973.

Peter G. Fetros, Sacramento, under appointment by the Supreme Court, for petitioners.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Willard F. Jones, David M. Blackman, and Charles P. Just, Deputy Attys. Gen., for respondent.

SULLIVAN, Justice.

In these separate proceedings in habeas corpus each petitioner seeks a determination that he took an appeal by the timely constructive filing of a notice of appeal from the judgment of conviction under which he is held. We issued an order to show cause in each case directed to the Director of the Department of Corrections (Director) and appointed Peter G. Fetros, to represent each petitioner. Since both cases present a common issue we consider them together.

Petitioner Ray Edward Benoit is imprisoned under a judgment of conviction of assault with a deadly weapon on a police officer (Pen.Code, § 245, subd. (b)) entered by the Superior Court of Shasta County on a jury verdict. On February 14, 1972, ¹ after imposing sentence, the court advised petitioner in accordance with rule 250, California Rules of Court. ² At that time the following colloquy occurred:

'THE COURT: . . . and that if you have no attorney, and file a Notice of Appeal, the District Court of Appeals will appoint an attorney to represent you, even if you can't afford one, of course. It will not be Mr. Redmon (Shasta County Public Defender), it will be some other attorney at the District Court of Appeals, and I assume, Mr. Redmon, you have explained these rights to your--

'MR. REDMON: (Interposing) Well, I was just discussing it with him now, your Honor, and what I will do is make available for tomorrow--

'THE COURT: (Interposing) For the Notice of Appeal?

'MR. REDMON: Yes.

'THE COURT: All right. . . .'

Mr. Redmon never filed a notice of appeal. His affidavit, ³ attached to the Director's return to the order to show cause, states in pertinent part: '. . . At that time (time of sentencing) I advised Mr. Benoit that he had a basis for an appeal in my opinion, but that he should delay filing a notice of appeal as he was to be taken to Monterey County, California, to stand trial on a murder charge and it was in his best interests to concentrate on assisting Mr. David Goyne, Deputy Public Defender, Monterey County, in his defense of the murder charge.

'I assumed that a Notice of Appeal for Mr. Benoit would be prepared in Salinas, California, by the Monterey County Public Defender, but I cannot honestly say that I advised Mr. Benoit to have that office prepare the Notice of Appeal.' (Italics added.)

Petitioner Benoit was thereafter delivered by the Sheriff of Shasta County to the appropriate authorities of Monterey County where he appeared in the superior court to answer the charges pending against him (see fn. 1 Ante). In those proceedings, he was represented by David M. Goyne, a deputy public defender. According to Mr. Goyne's affidavit, ⁴ which is attached to the petition for the writ, petitioner informed Mr. Goyne of the conviction in Shasta County and of his intention to take an appeal from the judgment. His affidavit continues thusly: 'Mr. Benoit told me he had been sentenced on February 24, 1972 (actually it was February 14, 1972). I can recall calling Mr. Redmon's office in Redding on at least one occasion after that conversation with Mr. Benoit. Mr. Redmon was not in the office at that time, but I asked his secretary if the papers were being filed giving notice of appeal in Mr. Benoit's case. The secretary assured me the papers were being processed and were at that time somewhere on her desk. I did not specifically ask the secretary if Mr. Redmon was representing Mr. Benoit on appeal. However, neither Mr. Redmon's secretary nor Mr. Redmon, to my recollection, ever asked me at any time to assist in any way in the filing of the appeal notice in Redding. . . . ( ) During the week of April 19, 1972, as April 24, 1972, approached I called the Shasta County Clerk and learned no appeal notice had been lodged in Mr. Benoit's case. I, therefore, immediately prepared such a notice for Mr. Benoit to sign and mailed the signed notice at once to the Shasta County Clerk by which notice Mr. Benoit filed his notice of appeal in case number 44127, Shasta County.' (Italics added.)

The Shasta County Clerk filed the notice of appeal and prepared the record on appeal. However, the Clerk of the Court of Appeal, Third Appellate District, upon direction of the court, returned the record on appeal because the notice of appeal was filed on April 24, 1972, and thus after the expiration of the 60-day period prescribed for the taking of appeals in criminal cases (rule 31(a), Cal. Rules of Court), ⁵ petitioner seeks a determination that, notwithstanding such late filing, his appeal has been properly taken and is pending.

Petitioner Richard Wyckoff is imprisoned under a judgment of conviction entered March 10, 1972, by the San Diego Superior Court for two unspecified offenses. Wyckoff was represented by Robert Rounds, his court-appointed counsel. After imposing sentence, the trial court properly advised petitioner of his appeal rights pursuant to rule 250, California Rules of Court (see fn. 2, Ante). At that time the following colloquy occurred: 'THE COURT: Do you understand that unless your present lawyer files an appeal. you have to file one? THE DEFENDANT: Yes.'

Petitioner Wyckoff alleges that at that time he asked Mr. Rounds to file a notice of appeal and that Mr. Rounds promised to do so but in fact failed to do so in time. In a letter responding to Wyckoff's inquiries as to why the notice of appeal had not been filed, Mr. Rounds admitted that he had promised to file a notice of appeal, that he had a copy of the notice of appeal which he assumed had been filed and that if it had not been filed, it was due either to an inadvertence or to the loss of the document. ⁶

The notice of appeal was actually received in the office of the Clerk of San Diego County on June 26, 1972. Since it was 46 days late, the clerk marked the notice, 'Received, but not filed,' and so informed petitioner. Wyckoff made a motion in the Court of Appeal, Fourth Appellate District, Division One, for leave to file a late appeal. His motion was denied without opinion. In this proceeding petitioner seeks a determination that his appeal is pending and that the record on appeal should be prepared.

We observe at the start that '(i)n the absence of another adequate remedy, habeas corpus lies to correct the erroneous denial of a right to an effective appeal' (In re Parker (1968), 68 Cal.2d 756, 760, 69 Cal.Rptr. 65, 67, 441 P.2d 905, 907; see also In re Martin (1962), 58 Cal.2d 133, 141, 23 Cal.Rptr. 167, 373 P.2d 103; In re Byrnes (1945), 26 Cal.2d 824, 826--828, 161 P.2d 376) and also lies to determine that an appeal is pending and to effect preparation of the record so as to perfect the appeal. (In re Gonsalves (1957), 48 Cal.2d 638, 639, 641--642, 311 P.2d 483, cited with approval in In re William M. (1970), 3 Cal.3d 16, 24, 89 Cal.Rptr. 33, 473 P.2d 737.)

Petitioners contend that notwithstanding the 1972 amendment of rule 31(a) which among other things eliminated the procedure theretofore in effect for granting relief from a failure to file a timely notice of appeal, this court has jurisdiction and discretion to order the filing of a notice of appeal received by the clerk of the superior court after the expiration of the 60-day period prescribed by the rule (see fn. 5, Ante). The Director on the other hand contends that the 60-day period is mandatory and jurisdictional and that as a consequence this court is without power to extend the time for filing. It will be helpful to a consideration of the question before us to set forth at length at the start the antipodal positions of the parties.

The Director's argument runs as follows: In 1933 this court in People v. Lewis (1933), 219 Cal. 410, 413--414, 27 P.2d 73, 74, affirmed a long-standing rule in unequivocally holding that '(t)he requirements as to the time for filing notices of appeal are mandatory and jurisdictional in both civil and criminal actions. (Citations.) . . . Where through inadvertence or mistake of a party or his attorney, notice is not filed within the time limited by law, neither the trial court nor appellate court can afford relief thereafter by permitting filing of a tardy notice. . . .' At that time section 1239 of the Penal Code specified that an appeal could be taken either by oral announcement at the time of sentencing or by filing a written notice within two days after judgment. The appellate courts remained without jurisdiction to consider late appeals until 1961. (In re Del Campo (1961), 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912.) ⁷

In 1961--so the argument continues--rule 31(a) of the California Rules of Court, which specified that a notice of appeal in a criminal case must be filed within 10 days after judgment, was amended to include provision for late filing. ⁸ In People v. Casillas (1964), 61 Cal.2d 344, 345--346, 38 Cal.Rptr. 721, 722, 392 P.2d 521, 522, this court held that '(u)nder the amendments to rule 31(a) . . . the reviewing court has jurisdiction to relieve a defendant from his failure to file a timely notice of appeal . . ..' It was there pointed out that 'The rule stated in cases such as People v. Lewis (1933), 219 Cal. 410, 27 P.2d 73 . . ., with respect to a reviewing court's power to afford relief from the late filing of a notice of appeal has been abrogated by the amendments to Rule 31(a).' (Id., fn. 2 at p. 346, 38 Cal.Rptr. at p. 722, 392 P.2d at p. 522.) This court, following the direction in Casillas that 'the power of...