People v. Cato, Cr. 3140

• Decision Date: 25 October 1955
• Docket Number: Cr. 3140
• Citation: 136 Cal.App.2d 503,289 P.2d 119
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Paul CATO, Defendant and Appellant.

Page 119

289 P.2d 119

136 Cal.App.2d 503

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Paul CATO, Defendant and Appellant.

Cr. 3140.

District Court of Appeal, First District, Division 2, California.

Oct. 25, 1955.

Hearing Denied Nov. 23, 1955.

James D. Hadfield, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., of the State of California, Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

This is an appeal from an order denying an application made by defendant in propria persona to the San Francisco Superior Court, dated December 15, 1954, with respect to his appeal from a judgment of conviction of second degree murder entered by said court on December 19, 1951. No notice of appeal of said judgment had previously been filed. In 1953 appellant had petitioned the California Supreme Court for a writ of habeas corpus, which was denied without opinion. Appellant then petitioned the United States Supreme Court for a writ of certionari stating among other grounds: 'XI That petitioner was deprived of his rights to give notice of appeal and the arrest of judgment of conviction by actions of his jailors.' On October 14, 1954 said petition was denied in the following terms: 'Petition for writ of certiorari to the Supreme Court of California denied without prejudice to the petitioner's rights under the facts alleged to prosecute an appeal in the California state courts in accordance with principles announced in People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868.' 348 U.S. 850, 75 S.Ct. 61. Appellant's above application to the Superior Court stated in substance that appellant appealed from the judgment of December 19, 1951 on the basis of the above order of the United States Supreme Court and prayed for an order allowing such appeal and for an order for a transcript on appeal, designating the parts of the reporter's transcript he desired. His petition for writ of certiorari, containing his grievances against the original judgment, was appended. On February 24, 1955 the matter was heard in the Superior Court, appellant and a witness for the People testified and the motion was denied, the court holding that the facts, even those testified to by appellant, did not bring him under the Slobodion case. The transcript shows that when on December 19, 1951 appellant was sentenced to San Quentin a stay of execution was granted to and including January 2, 1952. Appellant's testimony was in substance to the following effect. During that period he was kept in the San Francisco County Jail No. 1. On December 19th his attorneys visited him there. They advised against appeal, but he said that he thought he would continue. He had an arrangement with them that for the amount paid by him they would defend his case in full including, if necessary, an appeal. The result of their conversation was that appellant and the attorneys would think the question of appeal over, and that one of the attorneys would be back in a day or so. When he did not come, even after appellant wrote to them asking why they did not show up, appellant himself wrote out a document intended as a notice of appeal, and gave it to a man, he knew as Mr. Jule. After about half an hour Mr. Jule brought the document back saying: 'Captain Smith wants to know who you think you are, anyhow, around here * * * Do you think we are your servants?' Appellant kept the document and did not do anything further about it, except trying to contact his attorneys through his sister. He did not mail the notice of appeal. Mr. Jule said later it was useless to mail the thing; it would not be given privilege, because most of his mail was confiscated by Mr. Smith. Mr. Jule 'practically' told him that he would not be able to get it out unless he got it out through his attorneys. Appellant insisted on it being notarized, hoping to have the notary take it to court, but he was refused that privilege. He was sending out mail at that time. Some of it was confiscated, some reached his sister or his wife. He did not try to mail the notice or to contact anybody else to file it because he was afraid that if he was too insistent, there would be retaliation by putting him in the 'black hole' where he had been for four days prior to this trial. On January 3, 1952 he was taken to San Quentin and he took the papers he had prepared with him. He kept them in his locker where they were eventually confiscated. He remained in San Quentin for four months and was then taken to Folsom. Because of restrictions on study he took eighteen months of research in Folsom before he filed his petition to the California Supreme Court.

Mr. Smith, who at that time was captain of the day watch in charge of County Jail No. 1 testified for the People that mail was censored but that no mailing was refused except when it was obscene or derogatory. He did not recall any conversation about appellant's mail or any of appellant's mail being refused. Appellant had the normal mailing privileges.

Counsel for appellant, appointed by this court to assist him on this appeal, has diligently urged that the above facts can be brought under the rule of the Slobodion case, supra. Both parties have concentrated on this point and have abstained...