People v. Curry

• Decision Date: 14 January 1965
• Docket Number: Cr. 7956
• Citation: 62 Cal.2d 207,42 Cal.Rptr. 17,397 P.2d 1009
• Court: California Supreme Court
• Parties: , 397 P.2d 1009 The PEOPLE, Plaintiff and Respondent, v. Watson T. CURRY, Defendant and Appellant.

Page 17

42 Cal.Rptr. 17

62 Cal.2d 207, 397 P.2d 1009

The PEOPLE, Plaintiff and Respondent, v. Watson T. CURRY, Defendant and Appellant.

Cr. 7956.

Supreme Court of California, In Bank.

Jan. 14, 1965.

Waston T. Curry, in pro. per.

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

Stanley Mosk and Thomas C. Lynch, Attys. Gen., and John F. Kraetzer, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Petitioner seeks relief from his default in failing to file a 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. ¹ There have been several recent cases interpreting this rule and determining when it is operative.

In People v. Casillas, 61 A.C. 381, 38 Cal.Rptr. 721, 392 P.2d 521, the validity of the rule was upheld, and it was determined that it should be liberally construed so as to protect, where possible, the right of appeal. In that case during the 10-day period the attorney promised to appeal but did not do so. Relief was granted.

In People v. Tucker, 61 A.C. 921, 40 Cal.Rptr. 609, 395 P.2d 449, the defendant told the attorney he wanted to appeal and claimed the attorney stated that he would do so. The attorney denied making such a promise. This conflict was resolved in favor of the defendant. It was held that, where the defendant asks his trial attorney to appeal and the attorney promises to do so, in the absence of an estoppel, relief should be granted.

People v. Johnson, 61 A.C. 938, 40 Cal.Rptr. 708, 395 [62 Cal.2d 209] P.2d 668, was quite similar to the Tucker case, supra. The defendant stated that he told his attorney that he desired to appeal and that the attorney stated he would appeal. The attorney did not deny making such a promise but simply testified that he had no recollection of doing so. Relief was granted. In this case there was over a 7-month delay between the date of sentence and the date the delayed notice was presented. This delay was excused on the ground that the defendant had relied reasonably on the attorney's promise, and was in prison during that period.

In People v. Flanagan, 62 A.C. 50, 41 Cal.Rptr. 85, 396 P.2d 389, the defendant testified that immediately after sentence the attorney volunteered a statement telling defendant not to worry and that he was going to appeal. There was no evidence of a request to appeal by defendant. The attorney denied making the promise. This conflict was resolved in favor of defendant. Relief was granted, the court holding that a request was not necessary.

In People v. Diehl, 62 A.C. 111, 41 Cal.Rptr. 281, 396 P.2d 697, the defendant told his attorney he wanted to appeal, and the attorney admitted that this was so. Both the attorney and the petitioner admitted that there had been no promise by the attorney to appeal. The court held that an express promise was not necessary, and reversed a conclusion of the referee to the effect that defendant's belief that the attorney would appeal, in the absence of a promise, was not reasonable, holding that it was. Relief was granted. It was held (p. 115, 41 Cal.Rptr. p. 283, 396 P.2d p. 699) that 'where the defendant clearly indicates, * * * that he desires to appeal, the trial attorney is under a duty not to ignore that request. The trial attorney is under a duty either to file the notice of appeal, or to instruct the defendant as to the proper procedure, or to see that the defendant has counsel to do these things for him.' Relief should be granted where a request is made by the defendant although the attorney makes no express promise to appeal.

The fundamental philosophy upon which these opinions are based was stated as follows in People v. Tucker, supra, 61 A.C. 921, 925, 40 Cal.Rptr. 609, 612, 395 P.2d 449, 452:

'It seems quite clear that, regardless of the technical legal status of the trial attorney after conviction, a defendant who desires to appeal is entitled to protection during this vital 10-day period. Although the act of filing a notice of appeal is purely mechanical, its timely performance is vital. Help to an uninformed client in such circumstances is indispensable. If a defendant asks his attorney to appeal, and the latter agrees but fails to do so, even if his lawyer feels such an appeal would lack merit, the defendant is entitled to protection. (Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892.)

'Under the findings a denial of the right to appeal would present serious constitutional problems. Doubts should be resolved in favor of the right to appeal. The court, whenever possible, 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. The right to counsel and the right to appeal being of such importance, it would seem to be reasonable, where a defendant requests his trial counsel to file a notice of appeal to expect the attorney to take some action, and not to ignore the request. The attorney, in a proper case, may tell his client that, in his opinion, such an appeal would lack merit, but, unless the client abandons his request, the attorney should be under a duty to file such a notice, to secure other counsel, or to instruct the defendant as to the proper procedure. In the absence of such action, there being no grounds for an estoppel, relief should be granted.'

This statement was quoted with approval in People v. Flanagan, supra, 62 A.C. 50, 53, 41 Cal.Rptr. 85, 396 P.2d 389, and in People v. Diehl, supra, 62 A.C. 111, 114, 41 Cal.Rptr. 281, 396 P.2d 697. In addition it was stated in the Diehl case (p. 115, 41 Cal.Rptr. p. 283, 396 P.2d p. 699): 'The views expressed in Tucker are based on the premise that the defendant is peculiarly defenseless, and entitled to some legal protection during the 10-day period. He is entitled to representation during trial as a matter of constitutional law (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.E.2d 799). He is entitled to representation on appeal (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811). He is also entitled to protection during the 10-day period.'

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.

The present case falls within the rules of one or more of these cases. Here, the petition stated a prima facie case entitling the petitioner to relief under the rules announced in the Casillas and Flanagan cases, supra. After counsel had been appointed to represent the petitioner there was some correspondence between the appointed counsel and the office of the Attorney General. The latter received letters from the attorney who had represented petitioner at the trial. Thereafter, appointed counsel and the Attorney General stipulated that the case could be determined without being placed on a calendar on the record now before the court.

The record shows that petitioner was tried before a jury in San Mateo County for assault with intent to commit rape. Attorney Jack Small was appointed to represent him. The jury found him guilty. The motion for a new trial was denied, and ...