People v. Casillas, No. C007891

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

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.

Page 701

[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. [218 Cal.App.3d 1367] 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,

Page 702

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 [218 Cal.App.3d 1368] 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...