Gonsalves, Application of, Cr. 5986

CourtUnited States State Supreme Court (California)
Citation311 P.2d 483,48 Cal.2d 638
Decision Date31 May 1957
Docket NumberCr. 5986
PartiesApplication of Abel GONSALVES for a Writ of Habeas Corpus.

Page 483

311 P.2d 483
48 Cal.2d 638
Application of Abel GONSALVES for a Writ of Habeas Corpus.
Cr. 5986.
Supreme Court of California, In Bank.
May 31, 1957.
Rehearing Denied June 26, 1957.

Page 484

[48 Cal.2d 639] Abel Gonsalves, in pro. per., and Jerome A. Duffy, San Rafael, under appointment by the Supreme Court, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Arlo E. Smith, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Petitioner in this habeas corpus proceeding seeks a determination that he instituted an appeal by the timely constructive filing of a notice of appeal from the judgment under which he is held. This notice was not received by the clerk of the superior court which rendered the judgment. We have concluded that habeas corpus is an appropriate proceeding to enable petitioner to obtain a declaration to that effect so that he will be able to have a record prepared (see In re Byrnes (1945), 26 Cal.2d 824, 161 P.2d 376) and that petitioner has shown that he has an appeal pending under the doctrine of constructive filing (see People v. Slobodion (1947), 30 Cal.2d 362, 181 P.2d 868).

Petitioner is imprisoned under a judgment of conviction of illegal sale of narcotics (Health & Saf. Code, § 11500). The Los Angeles superior court rendered such judgment on December 19, 1955. So far as the superior court file of the proceedings against petitioner discloses, the judgment became final without timely filing of a notice of appeal. After such judgment had apparently become final, petitioner in propria persona filed his petition for habeas corpus. He alleges in substance that because he was without funds he could not employ counsel to represent him on appeal; that on December 20, 1955, the day after rendition of judgment, he attempted to appeal by placing a notice of appeal, stamped and properly addressed, in the proper place for deposit of outgoing mail [48 Cal.2d 640] in the Los Angeles county jail, where petitioner was then confined; and that jail officials 'concealed' the notice and 'refused' to mail it. This asserted notice of appeal did not reach

Page 485

the file of the clerk of the court by which the judgment was rendered. 1

After issuance of an order to show cause directed to the warden of the state prison having custody, and the filing of his return, we appointed counsel for petitioner and submitted to a referee the questions quoted in the margin. 2 Such referee has made the following 'findings of fact':

'1. Petitioner did not prepare a valid written notice of appeal from the judgment under which he is now held in custody.

'2. (a) Petitioner did write a letter to Judge Walker 3 and to the Clerk of the Superior Court and placed it in an envelope addressed to Clerk of the Superior Court, 306 North Broadway, Los Angeles, California, 4 with a three-cent stamp. In substance the letter stated: 'I am dissatisfied with the judgment', 'Please accept my notice of appeal', 'Please inform me and instruct me if there is anything else I should do. Your immediate reply will be appreciated', 'Respectfully' and signed it Abel Gonsalves. He did not make any reference to the case of People vs. Gonsalves, or make any other reference of that nature.

'(b) Petitioner placed the stamped envelope with the letter enclosed in the clip at the front of the cell for outgoing mail (c) on December 20, 1955, at about 11:00 A.M., [48 Cal.2d 641] and watched a man in Sheriff's uniform pick it up. (d) The Petitioner in taking such steps complied with jail rules regarding outgoing mail.

'3. The jail rules were that outgoing mail be placed in clips at the gate of the tanks, that prisoner's name and address be placed on the upper left corner, and also on the flap at the back of the envelope, properly addressed and stamped. The envelope remain open for censorship. The rules were not unreasonable and they did not affect the attempted filing.

'4. No jail official refused or neglected to mail or file the purported notice.

'5. The referee finds that no purported notice of appeal was filed or placed in the file of People vs. Abel Gonsalves, No. 175607, in the office of the Los Angeles County Clerk within the ten day period, expiring on December 29, 1955; that the letter of December 20, 1955, was an insufficient notice of appeal in that it did not identify the case or any portion thereof sought to be appealed from; that Petitioner did not talk to any State, County or jail official from time of judgment until the expiration of the ten day notice of appeal period; that there was no constructive filing or cause for extension of time and there was no evidence of fraud, inadvertence or neglect on the part of the adverse party; (People v. Delaney ((1955), 132 Cal.App.2d 838, 283 P.2d 287), People v. Riser ((1956), 47 Cal.2d 594, 305 P.2d 18)) that Petitioner bore the risk of filing by mail (People v. Martiz ((1955), 130 Cal.App.2d 602, 279 P.2d 568)) and that Petitioner was not lulled into a false feeling of security by anyone.'

Page 486

The attorney general argues that habeas corpus will not lie where the petitioner's purpose is to determine that an appeal is pending and to effect preparation of a record so that he can perfect such appeal. This contention is refuted by In re Byrnes (1945), supra, 26 Cal.2d 824, 161 P.2d 376, where we determined, on habeas corpus, that 'By the timely notices of appeal from the judgments of conviction under which Byrnes is now in custody, the District Court of Appeal acquired jurisdiction over the two actions, and * * * lack of a record on appeal does not affect its jurisdiction,' and where we directed the appropriate court 'to hear any motion or motions made within 90 days after the date of the filing of this opinion for the purpose of securing relief from default in the presentation of the record upon appeal in either or both of the actions referred to' (at page 828 of 26 Cal.2d (2, 3) at page 378 of 161 P.2d).

[48 Cal.2d 642] The attorney general suggests that petitioner should have sought relief in the trial court, as did the prisoner in People v. Cato (1955), 136 Cal.App.2d 503, 289 P.2d 119, or mandate as did the prisoner in Brown v. Superior Court (1955), 136 Cal.App.2d 28, 288 P.2d 144. In both the Cato case (at pages 506-507 of 136 Cal.App.2d, 289 P.2d at pages 121-122) and the Brown case (at page 31 of 136 Cal.App.2d, 288 P.2d at page 146) it was determined, without any discussion of the appropriateness of the form of remedy sought, that the prisoner was not entitled to relief enabling him to effect a belated appeal because he...

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37 cases
  • Richardson v. Ramirez 8212 1589, 72
    • United States
    • United States Supreme Court
    • June 24, 1974
    ...737 (1970), while in the same opinion adverting to its 'declaratory use of habeas corpus in a number of cases' such as In re Gonsalves, 48 Cal.2d 638, 311 P.2d 483 (1957). In support of its determination in the case before us that exercise of its original jurisdiction would be appropriate, ......
  • Jackson, In re, Cr. 7704
    • United States
    • United States State Supreme Court (California)
    • July 6, 1964
    ...from default in perfecting an appeal (In re Martin (1962) 58 Cal.2d 133, 141, 23 Cal.Rptr. 167, 373 P.2d 103; In re Gonsalves (1957) 48 Cal.2d 638, 642, 311 P.2d 483; In re Byrnes (1945) 26 Cal.2d 824, 828, 161 P.2d 376); the erroneous imposition of an excessive sentence (In re Morck (1919)......
  • Silverbrand v. County of Los Angeles, S143929.
    • United States
    • United States State Supreme Court (California)
    • April 23, 2009
    ...negligent or otherwise, had played a significant role in delaying transmittal of the prisoner's notice of appeal. (In re Gonsalves (1957) 48 Cal.2d 638, 645-646, 311 P.2d 483 (Gonsalves); see also People v. Frye (1953) 117 Cal.App.2d 101, 102-103, 255 P.2d 105.) We additionally applied the ......
  • William M., In re, Cr. 14469
    • United States
    • United States State Supreme Court (California)
    • August 24, 1970
    ...corpus in a number of cases. (Witkin, Cal. Criminal Procedure (1963) §§ 789--790, at pp. 762--764; see, e.g., In re Gonsalves (1957) 48 Cal.2d 638, 639, 311 P.2d 483, 484, ('habeas corpus is an appropriate proceeding to enable petitioner to obtain a declaration' of his As a further example,......
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