People v. Garcia, Cr. 8736

• Decision Date: 30 August 1965
• Docket Number: Cr. 8736
• Citation: 63 Cal.2d 265,405 P.2d 148,46 Cal.Rptr. 324
• Court: California Supreme Court
• Parties: , 405 P.2d 148 The PEOPLE, Plaintiff and Respondent, v. Jerry Joseph GARCIA, Jr., Defendant and Appellant.

Page 324

46 Cal.Rptr. 324

63 Cal.2d 265, 405 P.2d 148

The PEOPLE, Plaintiff and Respondent, v. Jerry Joseph GARCIA, Jr., Defendant and Appellant.

Cr. 8736.

Supreme Court of California.

Aug. 30, 1965.

Jerry Joseph Garcia, Jr., in pro. per., and Frank C. Morales, under appointment by the Supreme Court, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

This is a petition by Jerry Joseph Garcia, Jr., for relief from default because of the late filing of a notice of appeal. Under rule 31(a) of the California Rules of Court the power is conferred upon the appellate courts to grant relief in proper cases from a late filing. It is settled by the case law that the power thus conferred should be liberally exercised to protect the right to appeal where reasonably possible. (People v. Casillas, 61 Cal.2d 344, 38 Cal.Rptr. 721, 392 P.2d 521, People v. Madrid, 62 A.C. 631, 43 Cal.Rptr. 638, 400 P.2d 750, and cases cited.)

This case has been before us on a prior occasion. After the District Court of Appeal had denied relief, we granted a hearing, and returned the case to that court 'with directions to proceed in accordance with the procedure adopted in People v. Tucker, 61 (Cal.2d 828, 40 Cal.Rptr. 609, 395 P.2d 449.)' In the Tucker case, in the face of allegations substantially similar to those here involved, we appointed a referee to determine the truth of those allegations. On conflicting evidence, substantially similar to what developed in the instant case, the referee determined the conflict in favor of the petitioner there involved, and recommended the granting of the requested relief. We adopted the findings of the referee and granted relief. In the present case, the District Court of Appeal did not follow this procedure. It made what it called an 'independent inquiry,' which consisted of having one of the justices of the court telephone the counsel who had defended petitioner at the trial, a deputy public defender. Upon the representation by that deputy, over the telephone, that petitioner had not made a request to appeal, the petition was again denied. We again granted a hearing because the District Court of Appeal did not proceed as directed, and did not use a proper method to decide a controverted question of fact.

The facts are not complicated. Petitioner was charged by information in Count One with an assault with a deadly weapon with intent to commit murder, and in Count Two with an assault with a deadly weapon. After a jury trial, in which he was represented by a deputy public defender, he was found guilty on Count One and not guilty as to Count Two. On October 4, 1963, he was sentenced for the term prescribed by law. On October 28, 1963, he caused to be filed with the superior court a purported notice of appeal. He was properly informed that the notice was late and relief should be sought in the appellate courts. After some delay, relief was sought in the District Court of Appeal and denied.

From the record it was apparent that there was a conflict in the evidence between petitioner and his trial attorney. To resolve that conflict we appointed the Honorable Thomas P. White, Retired Associate Justice of this court, as referee. A hearing was held at which petitioner and the attorney testified.

On the issue whether the petitioner had requested his trial attorney to file a notice of appeal the referee found 'that Petitioner did, at the time the guilty verdict was rendered, request his then trial attorney to file a Notice of Appeal or as Petitioner put it to secure for him 'a retrial,' and that Petitioner's trial attorney told the former he would come to see him in the County Jail with regard thereto, but did not do so. I find that the failure of trial counsel to remember whether he advised Petitioner of 'the steps he should take to prepare and file a Notice of Appeal' * * * must be resolved in favor of Petitioner's affirmative claim that no such advice was given him.'

The referee also found that 'Petitioner did reasonably believe that his then trial attorney would comply with the request of the former that the attorney file a Notice of Appeal or as Petitioner understood it 'a retrial."

These findings are based on a careful review of the record by the referee. The evidence is conflicting, but there is credible, convincing, and substantial evidence to support the findings. While these findings are not binding on this court, they are entitled to great weight. (In re Riddle, 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304.) We have independently reviewed the record. Keeping in mind the liberal rule of construction set forth in People v. Casillas, supra, 61 Cal.2d 344, 346, 38 Cal.Rptr. 721, 392 P.2d 521, and People v. Curry, 62 A.C. 211, 212, 42 Cal.Rptr. 17, 397 P.2d 1009, and also keeping in mind the admonition in People v. Davis, 62 A.C. 855, at page 857, 44 Cal.Rptr. 441, at page 442, 402 P.2d 129, at page 130, that 'reasonable...