People v. Dailey, Cr. 3592

• Court: California Court of Appeals
• Writing for the Court: BRAY; TOBRINER, J., and FOLEY
• Citation: 175 Cal.App.2d 101,345 P.2d 558
• Decision Date: 05 November 1959
• Docket Number: Cr. 3592
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John T. DAILEY, Defendant and Appellant.

Page 558

345 P.2d 558 175 Cal.App.2d 101 PEOPLE of the State of California, Plaintiff and Respondent,
v.
John T. DAILEY, Defendant and Appellant. Cr. 3592. District Court of Appeal, First District, Division 1, California. Nov. 5, 1959. Hearing Denied Dec. 30, 1959.

Page 559

[175 Cal.App.2d 102] Alden H. McClelland, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Peter T. Kennedy, Deputy Atty. Gen., for respondent.

[175 Cal.App.2d 103] BRAY, Presiding Judge.

Defendant appeals from conviction by the court, jury trial having been waived, of violation of section 217, Penal Code (assault with intent to commit murder).

Questions Presented.

1. Was there a constructive filing of the notice of appeal within the prescribed time?

2. Did the court abuse its discretion in denying defendant's motion for a second sanity hearing?

1. Notice of Appeal.

Rule 31(a), Rules on Appeal, requires that notice of appeal in a criminal case (with certain exceptions not applicable here) be filed with the clerk of the superior court 'within 10 days after the rendition of the judgment * * *.' The judgment was rendered September 5, 1958, and defendant was sentenced to the state prison. Defendant's notice of appeal was received by mail and filed September 16 in the clerk's office. It is dated September 15 and the envelope in which it was mailed is postmarked Vacaville, September 15. September 15 was a Monday and under rule 31(a) was the last day for the appeal to be filed with the clerk. It was not received by the clerk until the next day. While there is no evidence of when it was presented to the prison authorities, it could have been presented no later than the day it was mailed which was the last day provided by rule 31(a) for it to be filed with the clerk.

The period fixed by this rule is jurisdictional and the appellate court has no power to relieve a defendant from his default in the event he files the notice beyond the period specified. People v. Riser, 47 Cal.2d 594, 305 P.2d 18; People v. Howard, 166 Cal.App.2d 638, 641, 334 P.2d 105. However, it had been held where an appellant is confined in a state prison that even though the notice reaches the clerk's office after the 10 days period, the filing is in time if (1) the appellant places the notice of appeal in the hands of the proper prison officials within such time that it can be mailed to the clerk's office and reach that office before the 10 days period has elapsed (People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868; People v. Frye, 117 Cal.App.2d 101, 255 P.2d 105; People v. Rascon, 128 Cal.App.2d 118, 274 P.2d 899; People v. Aresen, 91 Cal.App.2d 26, 204 P.2d 389, 957; People v. Tenney, 162 Cal.App.2d 458, 328 P.2d 254); or (2) the appellant is lulled by a prison official into a sense of security as to the date upon which the notice should be filed, such date being, [175 Cal.App.2d 104] however, beyond the 10 day period (People v. Head, 1956, 46 Cal.2d 886, 299 P.2d 872; People v. Calloway, 127 Cal.App.2d 504, 274 P.2d 497); or (3) where the appellant requested, within time, permission of the prison officials to forward his notice but due to the prison procedure was unable to sign the notice until after the 10 days had passed (People v. Frye, supra, 117 Cal.App.2d 101, 102, 255 P.2d 105).

The theory upon which the above cases hold that under the circumstances in them set forth the prisoner's notices were considered filed in time is, as expressed in People v. Slobodion, supra, 30 Cal.2d at page 368, 181 P.2d at page 872, that there was 'a constructive filing within the prescribed time limit'; in other words, that the presentation of the notice, or the offer to present it, to the proper prison authority, constituted a constructive filing in the county clerk's office.

Page 560

We can see no good reason why such theory should not apply to the presentation to the prison authority of a notice of appeal at any time within the 10 day period. Otherwise, the actual time within which a person who is confined in prison may act is reduced beyond the time in which a person who is not so confined may act. Thus a person on bail has until 5 o'clock of the tenth day to act to file his notice or have someone file for him. The person in prison has no such time. Her must act to file his notice with the prison authorities at the very least on the ninth day and in most instances on the eighth day as from some of the prisons it will take two days for the mail to reach many of the county clerks' offices in this state. Thus, a person in prison, by reason of his imprisonment, loses from one to two days of the time allowed him to act. He has no direct access, as has the non-prisoner, to the proper county clerk's office. The situation is that the state by law having imposed the conditions governing the taking of an appeal, the prisoner, by reason of his incarceration by the state, must cut down the time in which to act granted by the state from one to two days. In order to give him the same rights and the same justice as a non-prisoner it is necessary and right that it be held that a filing with the prison authorities at any time within the 10 days is a constructive filing at that time in the office of the proper county clerk. This is the first case to flatly consider the question of the filing with the prison authorities of the notice on the tenth day allowed for appeal. In the cases above cited there was an element of fault upon the part of the prison authorities, which element is absent [175 Cal.App.2d 105] here; nevertheless we see no reason why the fundamental reasoning of those cases should not apply here, namely, that by state action (proper though that action is) the prisoner has been circumscribed in his ability to get his appeal filed in proper time at the county clerk's office. In People...