People v. Acosta

• Decision Date: 08 July 1969
• Docket Number: Cr. 11587
• Citation: 456 P.2d 136,78 Cal.Rptr. 864,71 Cal.2d 683
• Court: California Supreme Court
• Parties: , 456 P.2d 136 The PEOPLE, Plaintiff and Respondent, v. Alfredo Pacheco ACOSTA, Defendant and Appellant.

Page 864

78 Cal.Rptr. 864

71 Cal.2d 683, 456 P.2d 136

The PEOPLE, Plaintiff and Respondent, v. Alfredo Pacheco ACOSTA, Defendant and Appellant.

Cr. 11587.

Supreme Court of California,

In Bank.

July 8, 1969.

Alfredo P. Acosta, in pro. per. and Don Edgar Burris, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and Marjory Winston Parker, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Petitioner seeks an order permitting him to file a late notice of appeal pursuant to rule (a) of the California Rules of Court. Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment but empowers appellate courts to grant relief from default in proper cases. This power is to be liberally exercised to protect the right to appeal. (People v. Camarillo, 66 Cal.2d 455, 456, 58 Cal.Rptr. 112, 426 P.2d 512; People v. Ruch, 65 Cal.2d 138, 139, 52 Cal.Rptr. 585, 416 P.2d 817; People v. Casillas, 61 Cal.2d 344, 345--346, 38 Cal.Rptr. 721, 392 P.2d 521; cf. In re Parker, 68 Cal.2d 756, 760, 69 Cal.Rptr. 65, 441 P.2d 905.) 'The policy of appellate courts * * * is to hear appeals on the merits and to avoid, where possible, forfeitures of substantial rights on technical grounds. The interest of the state that justice be done in criminal cases reinforces an appellant's claim that his appeal be considered on the merits.' (People v. Casillas, Supra, at p. 346, 38 Cal.Rptr. at p. 722, 392 P.2d at p. 522.) Petitioner has presented a proper case for relief.

In 1966, petitioner was charged with four counts of first degree murder (Pen.Code, §§ 187--189). He pleaded not guilty and not guilty by reason of insanity. At his trial before the Superior Court of Kern County in February of 1967, he was represented by appointed counsel, Thomas P. Daly, Jr. The court found petitioner guilty on all four counts and on March 2, 1967, sentenced him to life imprisonment on each count.

On August 23, 1967, petitioner filed an application for leave to file a late notice of appeal on the grounds (1) that his trial counsel failed to advise him of his right of appeal; (2) that his trial counsel failed to instruct petitioner how to file a timely notice of appeal in his own behalf; and (3) that on the advice of a fellow inmate he made two written requests within 10 days after judgment that his attorney visit him at the Kern County jail in order to discuss further proceedings but that there was no response from the attorney.

To ascertain the facts relevant to petitioner's request for relief we appointed the Honorable Irving H. Perluss, Judge of the Superior Court of Sacramento County, as referee for this court and directed him to conduct an evidentiary hearing. We appointed counsel to represent petitioner in connection with this hearing.

The evidence adduced at the referee's hearing may be summarized as follows: Petitioner, who speaks very little English and testified through a Spanish-speaking interpreter, stated that he did not know at any time before or within the 10 days after judgment what an appeal was; that prior to sentencing his attorney, Daly, offered to file an appeal for $10,000 but did not explain what an appeal was; that at the beginning of the week he spent in the county jail after sentencing a fellow inmate recommended he try to contact his attorney when he asked 'Well, am I not going to court? Am I not going to go before the Judge any more?'; and that he then sent two messages to Daly on standard forms provided by the jail; and that Daly never responded to the messages.

Conrado Martinez, who admitted suffering a felony conviction for forgery in Texas, testified that he was the inmate in the county jail to whom petitioner referred. His testimony was in accord with petitioner's version of their encounter.

Innocencio Hernandez, who admitted suffering three felony convictions for possession of narcotics, testified that he was petitioner's cell mate at Folsom and had been ever since petitioner was transferred there from the county jail; that when he asked petitioner if he had appealed petitioner replied he did not know what an appeal was; and that, based on conversations with petitioner concerning his case, he prepared the petition for relief under rule 31(a).

Daly testified that he never asked petitioner for $10,000 for an appeal but that he discussed with petitioner both before and within 10 days after sentencing petitioner's appeal rights, the 10-day limitation on filing a notice of appeal, and his (Daly's) reservations regarding the existence of grounds for an appeal; that his discussion of an appeal with petitioner within 10 days after sentencing occurred during a visit with petitioner in the county jail which he made in response to a message he received from petitioner; that petitioner's only concern at that visit was with the disposition of his minor children; and that although he told petitioner of his appeal rights, he could not 'say with complete certainty that the words penetrated' in view of petitioner's 'emotional and mental condition' which caused Daly to have 'difficulty getting through to him * * * all through our relationship.'

The referee in accordance with Daly's testimony found that Daly advised petitioner of his appeal rights before and within the 10-day period following judgment, that petitioner did not request Daly to file an appeal, and that petitioner was Not aware of his appeal rights during this time. These findings, although not binding on this court, are entitled to great weight. (In re Notz, 62 Cal.2d 423, 425, 42 Cal.Rptr. 321, 398 P.2d 593.) They are supported by undisputed evidence and by the weight of the credible evidence where the evidence is conflicting, and they are adopted as the findings of this court. (People v. Ruch, Supra, 65 Cal.2d 138, 143, 52 Cal.Rptr. 585, 416 P.2d 817; People v. O'Neil, 64 Cal.2d 666, 671, 51 Cal.Rptr. 250, 414 P.2d 378.)

In exercising its power to determine the circumstances which warrant granting a defendant relief from his failure to file a timely notice of appeal (People v. Casillas, Supra, 61 Cal.2d 344, 38 Cal.Rptr. 721, 392 P.2d 521) this court has established the following general rules: A defendant is entitled to relief, absent grounds for waiver or estoppel, where he makes a timely request of his trial attorney to file an appeal, thereby placing the attorney under a duty to file it, instruct defendant how to file it, or secure other counsel for him (People v. Camarillo, Supra, 66 Cal.2d 455, 58 Cal.Rptr. 112, 426 P.2d 512; People v. Tucker, 61 Cal.2d 828, 40 Cal.Rptr. 609, 395 P.2d 449); or where defendant's trial attorney makes a timely promise to file an appeal, thereby, invoking reasonable reliance on the part of the defendant (People v. Flanagan, 62 Cal.2d 63, 41 Cal.Rptr. 85, 396 P.2d 389; People v. Johnson, 61 Cal.2d 843, 40 Cal.Rptr. 708, 395 P.2d 668).

A defendant is also entitled to relief where he 'has diligently sought to file a timely notice (himself) but has been frustrated due to some default on the part of public officials charged with the administration of justice, * * *.' (People v. Martin, 60 Cal.2d 615, 617, 35 Cal.Rptr. 769, 770, 387 P.2d 585, 586 (court misled defendant into delaying his appeal); accord, People v. Head, 46 Cal.2d 886, 299 P.2d 872; People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868).

However, a defendant is not entitled to relief from his failure to file a timely notice of appeal where the trial attorney does not promise to appeal and the defendant fails to either make a timely request that his attorney file an appeal or make a timely attempt to file a notice of appeal himself. (People v. Abrams, 67 Cal.2d 821, 63 Cal.Rptr. 723, 433 P.2d 731; People v. Ruch, Supra, 65 Cal.2d 138, 52 Cal.Rptr. 585, 416 P.2d 817.) In People v. Hatten, 64 Cal.2d 224, 227--229, 49 Cal.Rptr. 373, 411 [456 P.2d 139] P.2d 101, we held that this rule, denying relief in cases of inaction, applies even where the defendant's inaction is due to ignorance of procedures incident to an appeal (such as the 10-day filing period) or ignorance of the right to appeal itself.

We have reconsidered the Hatten decision and have decided that it is at odds with this court's policy of liberally exercising its power, under rule 31(a), to grant relief in appropriate cases from default in filing a timely notice of appeal (People v. Camarillo, Supra, 66 Cal.2d 455, 456, 58 Cal.Rptr. 112, 426 P.2d 512). Accordingly, it is overruled. The decision in this case rests upon this court's discretionary power under rule 31(a).

A convicted criminal defendant has a statutory right to appeal. (Pen.Code, §§ 1237, 1466, subd. 2; People v. Tucker, Supra, 61 Cal.2d 828, 832, 40 Cal.Rptr. 609, 395 P.2d 449, see Witkin, Cal. Criminal Procedure (1963) § 639, p. 630.) While it is not only proper but desirable that there should be a limited period of time following the judgment or other appealable order within which to file an appeal (see United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259), '(t)he first requirement of any waiver of statutory or constitutional rights * * * is that it be knowingly and intelligently made.' (In re Walker, 71 A.C. 56, 59, 77 Cal.Rptr. 16, 18, 453 P.2d 456, 458.)

Furthermore, we have consistently interpreted rule 31(a) as meaning that 'whenever possible, (this court) should exercise the jurisdiction conferred upon it by rule 31(a), and grant relief, as a matter of policy, from the late filing of the notice (of appeal).' (People v. Tucker, Supra, 61 Cal.2d 828, 832, 40 Cal.Rptr. 609, 612, 395 P.2d 449, 452.) This interpretation of rule 31(a) follows from our conviction that 'The interest of the state that justice be done in criminal cases reinforces an appellant's claim that his appeal be considered on the merits.' (People v. Casillas, Supra, 61 Cal.2d 344, 346, 38 Cal.Rptr. 721, 722, 392 P.2d...