Brown v. Superior Court In and For Los Angeles County

• Decision Date: 04 October 1955
• Citation: 136 Cal.App.2d 28,288 P.2d 144
• Court: California Court of Appeals Court of Appeals
• Parties: Benjamin J. BROWN, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Charies W. Fricke, Judge thereof, Harold J. Ostly, County Clerk of Los Angeles County, State of California and Ex Officio Clerk of said Superior Court, Respondent. Civ. 21260.

Page 144

288 P.2d 144

136 Cal.App.2d 28

Benjamin J. BROWN, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Charies W. Fricke, Judge thereof, Harold J. Ostly, County Clerk of Los Angeles County, State of California and Ex Officio Clerk of said Superior Court, Respondent.

Civ. 21260.

District Court of Appeal, Second District, Division 1, California.

Oct. 4, 1955.

Benjamin J. Brown, in pro. per.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondents.

PER CURIAM.

Petitioner urges he is entitled to the writ prayed for on the ground that he was denied the right to an appeal because certain Los Angeles County Jail officials refused to mail a notice of appeal for him. He asks that this court direct the filing of his notice of appeal and order the preparation of a clerk's and reporter's transcript on appeal for filing in this court.

An examination of the record reflects that in the Superior Court of Los Angeles County petitioner was convicted of the crime of robbery which was found to be robbery of the second degree. On November 18, 1954 judgment was pronounced and he was sentenced to State Prison. No notice of appeal was filed with the clerk of the Superior Court within the time prescribed by the Rules on Appeal.

Thereafter, on December 6, 1954, and accompanied by a letter of Thomas Farrell, Records Officer of the California Institution for Men at Chino, a document, dated December 3, 1954 and denominated Notice of Appeal, was filed with the clerk. Pursuant to this notice, a clerk's and reporter's transcript was prepared and filed with this court on January 18, 1955.

Subsequent to the filing of the record on appeal the People filed a Notice of Motion to Dismiss the Appeal. The matter came on for hearing and, pursuant to the People's motion, the appeal was dismissed by this court on March 22, 1955. On July 25, 1955 petitioner filed in this court the foregoing petition for a writ of mandate.

By his petition and the affidavits of two inmates of the State Prison, petitioner claims that on the day of the judgment (November 18, 1954), he addressed a note to the superior court, stating that he wished to file a notice of appeal; that he called the jailer, a 'Mr. Bogdan' or a 'Mr. Bardon' and asked him to deliver the notice for him; that 'Bogdan' or 'Bardon' apparently refused to act as a messenger for him; that petitioner then borrowed a stamp and envelope from a cellmate and gave the envelope, addressed to the clerk of the court, to 'Bogdan' or 'Bardon'. Petitioner claimed that he later sought to ascertain if the letter had been mailed, but received no satisfaction from 'Bogdan' or 'Bardon'. (It appears that the notice of appeal which was filed was mailed by the records officer at the Men's Institution at Chino after petitioner was transferred to said institution pursuant to the judgment.)

In opposition to the petition for a writ of mandate the attorney...