People v. Collier

• Decision Date: 09 March 1965
• Docket Number: Cr. 7943
• Citation: 399 P.2d 569,62 Cal.2d 543,43 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 399 P.2d 569 The PEOPLE, Plaintiff and Respondent, v. Clifford T. COLLIER, Defendant and Appellant.

Page 1

43 Cal.Rptr. 1

62 Cal.2d 543, 399 P.2d 569

The PEOPLE, Plaintiff and Respondent, v. Clifford T. COLLIER, Defendant and Appellant.

Cr. 7943.

Supreme Court of California, In Bank.

March 9, 1965.

Frank C. Morales, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr., Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Petitioner seeks relief from his default in failing to file his notice of appeal in a criminal case within the 10-day period specified by rule 31(a) of the California Rules of Court. That rule provides for relief from default in a proper case. The power to grant such relief should be liberally exercised to avoid, if possible, the loss of the right to appeal. the prior cases announcing and applying that liberal rule have been cited and reviewed in People v. Curry, 62 A.C. 211, 42 Cal.Rptr. 17, 397 P.2d 1009 (see also In re Notz, 62 A.C. 437, 42 Cal.Rptr. 321, 398 P.2d 593).

The rules of these cases were summarized as follows in the Curry case, supra (at p. 215, 42 Cal.Rptr. at p. 19, 397 P.2d at p. 1011): 'Under the rules of these cases it is now settled that where there is a request to appeal within the 10-day period by the defendant, and a promise of the attorney to do so, or where there is such a promise but no such request, or where there is such a request but no promise, absent grounds of waiver or estoppel, the defendant is entitled to relief.'

In the present case the weight of the evidence shows that petitioner, within the 10-day period, expressed to his attorney his desire to appeal, and that the attorney failed to take the required steps to perfect the appeal or to inform his client of the proper procedure. Therefore, the requested relief from default should be granted.

On February 13, 1964, in the Superior Court of Kern County, defendant was found guilty of two felonies. He was sentenced that same day. From that date, and for about 10 days thereafter, he remained in custody in the county jail. After February 13th, he did not see his trial counsel until February 21st, because the attorney was ill and hospitalized or home in bed during that period. On the 21st the attorney called on petitioner, who was still in the county jail. At that time petitioner expressed his desire to appeal. The attorney did not promise to appeal, although he expressed the opinion an appeal would be without merit. However, he did not tell petitioner that he would not appeal, nor did he explain the procedure of appeal to the defendant, or attempt to secure for defendant new counsel.

After petitioner was transferred to the state facility, under date of February 26, 1964, he wrote to the trial judge inquiring about the status of his case. Although awkwardly expressed, this letter was treated as a notice of appeal, but petitioner was notified, quite properly, that the notice was ineffective because several days late, and that relief from his default would have to be sought elsewhere. There followed a seris of letters from petitioner to the trial judge, and a letter from the trial attorney to petitioner. From these letters it developed that no notice of appeal had been filed during the 10-day period. Thereupon, petitioner applied to the appellate court for relief from his default. Upon denial of that request, a petition for hearing was granted by this court. Counsel was appointed to represent petitioner, and a referee appointed to ascertain the facts. The referee selected, the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin, was directed to hold a hearing to ascertain what petitioner, within the 10-day period, stated to his attorney, if anything, in regard to an appeal, whether petitioner believed in good faith that his attorney would file a notice of appeal, and what, if anything, the attorney said or did with regard to an appeal during the 10-day period.

The referee held the required hearing and found that within the 10-day period petitioner informed the attorney that he wanted to appeal, that petitioner did not believe in good faith that the attorney would file the notice, and that the...