People v. Casillas

• Decision Date: 21 March 1990
• Docket Number: No. C007891,C007891
• Citation: 218 Cal.App.3d 1365,267 Cal.Rptr. 700
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Angelo Jessie CASILLAS, Defendant and Appellant.

Page 700

267 Cal.Rptr. 700

218 Cal.App.3d 1365

The PEOPLE, Plaintiff and Respondent, v. Angelo Jessie CASILLAS, Defendant and Appellant.

No. C007891.

Court of Appeal, Third District, California.

March 21, 1990.

Rehearing Denied April 17, 1990.

[218 Cal.App.3d 1366] Richard Phillips, appointed by the Court of Appeal, for defendant and appellant.

No appearance for plaintiff and respondent.

OPINION ON ORDER

PUGLIA, Presiding Judge.

Defendant seeks an order from this court relieving him from the consequences of his failure to file a notice of appeal with the clerk of the superior court within the time permitted by subdivision (a) of rule 31 of the California Rules of Court (Rule 31). The clerk received defendant's notice beyond the authorized filing deadline and marked it received but not filed as directed by Rule 31. Citing In re Gonsalves (1957) 48 Cal.2d 638, 311 P.2d 483, and People v. Wychocki (1987) 188 Cal.App.3d 1063, 233 Cal.Rptr. 830, defendant contends his notice was timely because it was placed in the prison mailbox within 60 days after the rendition of judgment, and asks us to order the clerk to file it belatedly. We shall deny the application. As we explain, in the absence of some showing that delay in presenting a notice of appeal to the county clerk is attributable to negligence or inaction on the part of custodial officials, a dereliction of duty by counsel, or some other cause not the fault of the party seeking to appeal, relief is not available.

No legally sufficient justification or excuse appears in this case. The Sacramento Superior Court pronounced judgment sentencing defendant to state prison on October 3, 1989. The 60th day following was December 2, a Saturday. Therefore, defendant had until the close of business on Monday, December 4, to file his notice of appeal with the county clerk. In his declaration supporting this application, defendant states he took no action to perfect his appeal until Friday, December 1, when he telephoned the Central California Appellate Program for advice in preparing his notice. Defendant prepared the notice and placed it in the prison mailbox on that day. The notice was not actually received by the Sacramento County Clerk until Friday, December 8.

Defendant offers no explanation for his delay in moving to perfect his appeal. Significantly, he does not contend that it resulted from any failure on the part of prison officials promptly to process his mail or to follow normal procedures in doing so. Nor does he claim that the notice was deposited in the prison mail sufficiently in advance of the filing deadline that it would in the normal course of events, have been delivered to the county clerk by December 4. Relying upon authorities that are no longer controlling, defendant appears to argue that the mere delivery of his notice of appeal into the hands of prison authorities at any time before the expiration of the 60th day after rendition of judgment constitutes compliance with Rule 31.

The issue presented in this proceeding is neither new nor novel. It has arisen recurrently over the years and has been dealt with in a number of appellate decisions. We shall start our analysis with a brief review of the history, as set forth in In re Benoit (1973) 10 Cal.3d 72, at pp. 78-89, 109 Cal.Rptr. 785, 514 P.2d 97, of Rule 31 and the cases which have recognized that the appellate courts may, in certain limited circumstances, entertain an appeal even though the notice was not filed with the county clerk within what is "normally" the jurisdictional time limit.

Prior to 1972, Rule 31 required that a notice of appeal in a criminal case be filed within 10 days after judgment. (See In re Benoit, supra, 10 Cal.3d at p. 80, 109 Cal.Rptr. 785, 514 P.2d 97.) In People v. Slobodion (1947) 30 Cal.2d 362, 181 P.2d 868, the court held that "if the prisoner appellant in a criminal case well within the time prescribed by the rules on appeal has delivered his notice of appeal to the prison authorities to be mailed to the clerk of the court, there has been a constructive filing of the notice and a timely compliance with the rules, where the prison authorities have negligently failed to forward the notice on time." (Benoit, supra, 10 Cal.3d at p. 81, 109 Cal.Rptr. 785, 514 P.2d 97.) This "constructive filing" rationale was thereafter applied in a number of cases involving late filings that were the result of fault on the part of the prison authorities, or reliance on misleading or incorrect advise by such officials. (Id. at pp. 82-83, 109 Cal.Rptr. 785, 514 P.2d 97; and see People v. Head (1956) 46 Cal.2d 886, 889, 299 P.2d 872; People v. Calloway (1954) 127 Cal.App.2d 504, 507, 274 P.2d 497; In re Gonsalves, supra, 48 Cal.2d 645-646, 311 P.2d 483.)

In re Benoit, supra, involved two new issues related to late notices of appeal. First, the court was called upon to decide whether the 1972 amendment to Rule 31 had eliminated judicial authority to grant relief from untimely filing in any circumstances. (See Benoit, supra, 10 Cal.3d at p. 78-79, 109 Cal.Rptr. 785, 514 P.2d 97; 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989), Appeal, § 3226, pp. 3985-3990.) This issue arose because before the 1972 amendment, Rule 31 allowed only 10 days for the filing of an appeal, but contained a provision permitting a nominal appellant to petition the reviewing court for relief if that limit was not met. The provision for relief was deleted when the rule was amended in 1972 to extend the time for filing to 60 days. Benoit rejected the People's argument that the removal from Rule 31 of the procedure for relief from default deprived the courts of power to permit a late filing. Benoit held that the constructive filing doctrine of Slobodion survived the amendment to Rule 31. (10 Cal.3d at pp. 84-85, 109 Cal.Rptr. 785, 514 P.2d 97.) However, the court pointed out that the principle, "as applied by Slobodion and its progeny ... has been applied (1) only to incarcerated appellants and (2) in special circumstances where the delay in filing the notice of appeal (a) has resulted from conduct or representations of prison officials upon which the prisoner relied and (b) has not been due substantially to fault on the part of the prisoner. Indeed, we apprehend throughout this line of cases an assumption that the prisoner in the main acted diligently--that he did all he could to take the appeal but was thwarted by the acts of prison officials or that he was lulled into a false sense of security by their conduct or representations." (Id. at p. 86, 109 Cal.Rptr. 785, 514 P.2d 97.)

Defendant here relies upon In re Gonsalves, supra, 48 Cal.2d, 311 P.2d 483 a constructive filing case in which late filing was the fault of custodial officials. However, as we have observed, defendant has proffered no evidence bringing this case within the rule of Gonsalves or the numerous other decisions applying the Slobodion doctrine.

The second issue decided by Benoit was whether discretion to grant relief from default should be extended to situations in which counsel had failed to file a timely notice of appeal when defendant had relied upon him to do so. Benoit held that, in certain circumstances, the courts could permit late filing of a notice where counsel had failed to fulfill this duty. (Id. at pp. 87-88, 109 Cal.Rptr. 785, 514 P.2d 97; and see In re Fountain (1977) 74 Cal.App.3d 715, 718, 141 Cal.Rptr. 654.) Defendant here does not contend that this alternative theory of constructive filing is applicable to the present case.

A third theory of constructive filing has been applied in a series of decisions, commencing with People v. Dailey (1959) 175 Cal.App.2d 101, 345 P.2d 558. Dailey held that "[e]ven where there is no fault of any kind on the part of the prison officials, or any delay in forwarding the notice, the incarcerated prisoner may be given what is in effect a 1- or 2-day extension of time, by treating deposit of the notice with prison officials as constructive filing." (6 Witkin & Epstein, op. cit. supra, Calif.Criminal Law, Appeal, § 3223, p. 3981.) Dailey was decided during the era when the time for filing was only 10 days. The Dailey court reasoned that insistence on actual receipt by the county clerk within that time unfairly penalized incarcerated defendants, since their time to act was effectively reduced to 8 or 9 days, whereas those not in custody had the benefit of the full 10 days. (175 Cal.App.2d at p. 105, 345 P.2d 558.) Therefore, Dailey held, "delivery by defendant of his notice of appeal to the prison authorities on the tenth day was a constructive filing in the county clerk's office as of that day." (Id. at p. 107, 345 P.2d 558.) The Dailey rule was followed in numerous cases decided prior to the 1972 amendment to Rule 31 which lengthened the time for filing to 60 days. (See, e.g., People v. Wise (1962) 199 Cal.App.2d 57, 18 Cal.Rptr. 343; People v. Spencer (1961) 193 Cal.App.2d 13, 13 Cal.Rptr. 881; ...