People v. Hawkins, Cr. 3439

• Decision Date: 07 November 1958
• Docket Number: Cr. 3439
• Citation: 164 Cal.App.2d 824,331 P.2d 171
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl HAWKINS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 171

331 P.2d 171

164 Cal.App.2d 824

The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl HAWKINS, Defendant and Appellant.

Cr. 3439.

District Court of Appeal, First District, Division 1, California.

Nov. 7, 1958.

Gilbert Harrick, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was charged with the sale and possession of narcotics. He admitted a conviction on a prior addiction charge. He was tried before the court without a jury and found guilty on the sale count. The possession count was dismissed. He now appeals, contending that the evidence is insufficient to sustain the findings.

At the threshold of this appeal we are met by the contention that the notice of appeal was filed too late. The judgment was entered on July 24, 1957, and the notice of appeal was filed with the clerk of the proper Superior Court on August 7, 1957. Thus, prima facie, the notice of appeal was filed four days too late. By an augmented record the defendant argues, however, that the notice was constructively filed within the 10-day required limit. We agree with this contention.

The augmented record shows that defendant was taken to the Reception-Guidance Center at San Quentin on July 24, 1957, the day that judgment was entered. That was a Wednesday. The very next day defendant requested, in writing, permission to consult with a staff member about his appeal. On August 1, 1957, a week later, and still within the required 10-day period, defendant deposited signed copies of his notice of appeal with the officials at the Center for mailing. He had no envelope or stamp. He requested that it be mailed. Apparently someone at the Center misdirected the notice to the District Court of Appeal here in San Francisco, and caused it to be mailed on Monday, August 5, 1957. It was finally filed with the clerk of the Superior Court on August 7, 1957.

The delay in the mailing occurred because, apparently, the notice of appeal did not reach the mail room of the Center until late Friday, August 2nd. Since that room is not open on Saturday or Sunday the notice was not mailed until August 5, 1957, Monday. It was misdirected to the wrong court by someone in the Center, and did not reach the clerk of the Superior Court until August 7, 1957.

It is apparent that the delay was not the fault of the defendant, but was caused by the acts of the prison officials. Had the notice been properly mailed on August 1st or 2nd it would have been received by August 3rd, the last day for filing. Thus, the defendant deposited the notice with the prison officials well within the 10-day period. He had no control over the acts of the prison officials. Under such circumstances it must be held that the notice was constructively filed within the 10-day period. People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868.

The transactions leading up to the charge here involved occurred in the late evening hours of February 20, 1957, and the early morning hours of February 21, 1957. At that time Robert Nikaoloff, a Federal Narcotic Agent, was working with the San Francisco police department on narcotic cases. Just before midnight on February 20, 1957, Nikaoloff met an informer, Rudy Martinez by name, around the corner from a designated pool hall on Fillmore Street in San Francisco. Nikaoloff entered the informer's car and searched him to see if he had any narcotics. None was discovered after a reasonably thorough search. Then Nikaoloff gave Martinez $20 in marked bills. The two then drove to a spot where the entrance to the pool hall could be seen. The informer walked to the pool hall, being in sight of Nikaoloff until he disappeared into the pool hall. During this walk the informer talked to and met no one. Nikaoloff also testified that in a short time defendant came out of the pool hall and walked some place outside of the vision of the officer. In about ten minutes he returned and again entered the pool hall.

Officer McKinley, an officer in the San Francisco police department with whom Nikaoloff was working, then continued the story. He testified that shortly after 9 p. m. on February 20, 1957, he and another officer parked in a panel truck directly in front of the pool hall in question. The two officers concealed themselves in the back of the enclosed truck. Holes, about the size of a dime, had been drilled in the side of the truck, and the officers kept a lookout through these holes of the interior of the pool hall. McKinley also testified that shortly after midnight he saw Martinez enter the pool hall and walk up to the defendant; that they conversed for a short time and then shook hands. Defendant then left the pool hall, and Martinez remained therein. Defendant, about ten minutes later, returned to the pool hall, and approached Martinez. McKinley saw a small white package passed from defendant to Martinez, and then saw Martinez leave the pool hall.

Martinez walked directly to the vehicle in which Nikaoloff was sitting....