Martin, In re

• Decision Date: 18 July 1962
• Docket Number: Cr. 6986
• Citation: 58 Cal.2d 133,373 P.2d 103,23 Cal.Rptr. 167
• Parties: , 373 P.2d 103 In re Duane K. MARTIN, on Habeas Corpus.
• Court: California Supreme Court

Page 167

23 Cal.Rptr. 167

58 Cal.2d 133, 373 P.2d 103

In re Duane K. MARTIN, on Habeas Corpus.

Cr. 6986.

Supreme Court of California, In Bank.

July 18, 1962.

Rehearing Denied Aug. 15, 1962.

James A. Clayton, under appointment by the Supreme Court, Sacramento, for petitioner.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

PER CURIAM.

This is an application by Duane K. Martin, an inmate at Folsom State Prison, for a writ of habeas corpus on the ground that he was deprived of his right of appeal through his attorney's neglect and failure to prosecute the same, and for that reason was deprived of his liberty. An order to show cause, directed to the Warden, Folsom State Prison, issued, and counsel has been appointed to represent petitioner in proceedings before this court.

On June 3, 1959 petitioner was convicted of robbery of the first degree and found to have suffered prior convictions of murder of the first degree, robbery of the first degree and grand theft. At the time of the commission of the instant offense petitioner was on parole from the prior convictions. He was represented at his trial by private counsel. Petitioner alleges that on July 31, 1959 he engaged other counsel to argue a motion for a new trial, and if unsuccessful, to 'do whatever was necessary in connection with the proceedings on appeal.' However, the attorney has raised some question as to the extent of the representation to be furnished by the latter. A Mrs. Pebble Cosby, a friend of petitioner who arranged for the employment of counsel, states that the attorney was to argue the motion for a new trial and if unsuccessful to prosecute an appeal, all for a $1,000 fee, with an understanding that an additional $1,500 would be paid after petitioner was free on bail or was granted a new trial. The attorney contends that the oral contract of employment required the payment of $1,000 from Mrs. Cosby before he took the case, and an additional $1,500 if he was to perfect an appeal should the motion for a new trial be denied. Petitioner himself had little to do with the fee arrangements, and Mrs. Cosby was the source of all funds to be made available.

Whatever the financial arrangements, the attorney did, on September 11, 1959, argue the motion for a new trial. It was denied the same day and on September 14, 1959 the attorney filed a notice of intention to appeal from the judgment of conviction and the denial of the motion for a new trial. Thereafter there were no communications between petitioner and his attorney. The latter took no further action in the matter except to request and obtain a 60-day extension of time within which to file an opening brief. The appeal was dismissed on April 29, 1960 under rule 17, subdivision (a), Rules on Appeal, for failure to file an opening brief.

During the time when the appeal was pending, and after its dismissal, petitioner made a sincere effort to ascertain the status thereof. He states that he made repeated efforts to communicate with his attorney; that he addressed a letter to the District Court of Appeal in February 1960 and was advised of the extension of time to March 31, 1960 within which to file the opening brief; that he wrote again on June 13, 1960 inquiring as to the status of his appeal and as to what could be done to protect his right of appeal, and was advised by the clerk of the dismissal on April 29, 1960 and that 'This Court has now lost jurisdiction;' ¹ that he again attempted to communicate with his attorney, requesting a return of records but received no reply; that on August 5, 1960 he wrote to the State Bar of California, requesting its assistance; that on September 15, 1960 he again wrote the District Court of Appeal asking that court to 'Re-instate my appeal' and was advised by the clerk that the remittitur had issued on June 29, 1960 and that the court had 'absolutely no jurisdiction even to reinstate your appeal.' Finally on September 21, 1960 petitioner requested the San Diego Superior Court to assist him in procuring his records and on November 14, 1960 he filed in that court a petition for a writ of mandate asking that the attorney be ordered to forward all records, transcripts and documents relating to petitioner's cause. On November 17, 1960 the attorney delivered the desired documents to petitioner.

As stated, it is the attorney's position that he was employed only to prosecute the motion for a new trial and perhaps to keep the right of appeal open until compensated for prosecuting the appeal, or until he determined that the appeal was without merit. He was not compensated, and states in a letter to Mrs. Cosby in explanation of his actions: 'Only twhen I was absolutely convinced that there was no justification for reversal did I abandon the appeal.' The decision to abandon was never communicated to petitioner.

Although it has been held that it is a dereliction of duty for an attorney to abandon a cause on appeal without the consent of his client (Larimer v. Smith, 130 Cal.App. 98, 101, 19 P.2d 825; see also People v. Davis, 48 Cal.2d 241, 256, 309 P.2d 1), the question here is not the misconduct, if any, on the part of the attorney, but rather whether petitioner had knowledge that his appeal was not being prosecuted and with that knowledge stood by without taking action to preserve it. If the petitioner's allegations and Mrs. Cosby's story are factually true, then it appears that petitioner may be entitled to some relief on grounds hereinafter set forth. While we are persuaded but the foregoing and other matters appearing of record that petitioner is innocent of any personal fault for the dismissal of his appeal, the attorney general with commendable fairness, has made it unnecessary for us to draw such a conclusion by his concession at oral argument that petitioner, under the circumstances, sought as best he was able to perfect an appeal through his counsel; that he attempted to keep informed of the status of the appeal but that counsel failed to advise petitioner thereof or of the attorney's decision to abandon the appeal. In light of such concession it is manifest that petitioner cannot be charged with consent to or even knowledge of the abandonment in the instant circumstances.

In spite of the information given to petitioner by letters received from the clerk of the District Court of Appeal, that court still had some jurisdiction to render relief to petitioner at the time he requested the same by his letters of June 13 and September 15, 1963. On June 13 the appeal had been dismissed but the remittitur had not yet gone down. It was provided in rule 25, Rules on Appeal, in subdivision (c): 'A reviewing court, for good cause, may stay the issuance of a remittitur for a reasonable period.' The default in the failure to file the brief may have been relieved pursuant to rule 53, subdivision (b) which provided in part: 'The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal.' And the time within which to file the brief may have been extended pursuant to rule 45, subdivision (c), which provides: 'The time for filing a notice of appeal or the granting or denial of a rehearing in the (Supreme Court or) District Court of Appeal shall not be extended. * * * The Chief Justice or Presiding Justice, for good cause shown, may extend the time for doing any other act required or permitted under these rules. * * *' (See also, Sanders v. Warden, 106 Cal.App.2d 707, 708, 236 P.2d 19.)

That the District Court of Appeal does retain some vestige of jurisdiction, even after the remittitur has gone down, is apparent from rule 25, which provides in subdivision (d): 'A remittitur may be recalled by order of the reviewing court on its own motion, on motion or petition after notice supported by affidavits, or on stipulation setting forth facts which would justify the granting of a motion.' Relief after the remittitur had gone down was made available in the case of In re Rothrock, 14 Cal.2d 34, 92 P.2d 634. It was held there that while the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued, a mistake or an improvident act which results in prejudicial error or a miscarriage of justice may nevertheless be corrected upon a recall of the remittitur. The court, quoting with approval from 23 California Law Review at page 354 where numerous authorities were reviewed, stated at page 39, 92 P.2d at page 637: "It would appear from these cases that a remittitur will be recalled when, but only when, inadvertence, mistake of fact, or an incomplete knowledge of all the circumstances of the case on the part of the court or its officers, whether induced by fraud or otherwise, has resulted in an unjust decision." A motion to recall the remittitur was granted in the Rothrock case about three years after the judgment on appeal became final. (See also Trumpler v. Trumpler, 123 Cal. 248, 55 P. 1008; Isenberg v. Sherman, 214 Cal. 722, 7 P.2d 1006; Rowland v. Kreyenhagen, 24 Cal. 52.) In Southwestern Inv. Corp. v. City of L. A., 38 Cal.2d 623, 241 P.2d 985, a motion to recall the remittitur was denied for lack of a showing of good cause. However, the court remarked at page 629, 241 P.2d at page 988: 'The decisions above cited establish that the extra-ordinary remedy by motion to recall the remittitur may be invoked only in cases of fraud or imposition practiced upon the court or upon the opposite party, or where the judgment was bases on a mistake of fact or occurred through inadvertence.' (Emphasis added.)

The policy of appellate courts, of course, is 'to hear appeals upon the merits and to avoid, if possible, all...