People v. Howard

• Decision Date: 31 December 1958
• Docket Number: Cr. 3495
• Citation: 166 Cal.App.2d 638,334 P.2d 105
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James HOWARD, Defendant and Appellant.

Page 105

334 P.2d 105

166 Cal.App.2d 638

PEOPLE of the State of California, Plaintiff and Respondent, v. James HOWARD, Defendant and Appellant.

Cr. 3495.

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

Dec. 31, 1958.

Rehearing Denied Jan. 30, 1959.

Hearing Denied Feb. 25, 1959.

Nathan S. Smith, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was charged and convicted of two first-degree burglaries. From the judgment entered on this verdict he appeals.

The attorney general contends that this court lacks jurisdiction to consider the appeal because, so it is urged, the appeal was filed beyond the 10-day period permitted by Rule 31 of the Rules on Appeal. That rule requires that, in criminal cases, the notice of appeal must be filed within 10 days of the rendition of judgment. The period fixed by this rule is jurisdictional, and the appellate court has no power to relieve the defendant from his default in the event he files the notice beyond the period specified. People v. Lewis, 219 Cal. 410, 27 P.2d 73; People v. Riser, 47 Cal.2d 594, 305 P.2d 18; People v. Cato, 136 Cal.App.2d 503, 289 P.2d 119.

In the instant case, judgment was rendered October 18, 1957. The notice of appeal is dated October 27, 1957, but was not filed in the proper county clerk's office until October 29, 1957. Thus, on its face, the notice of appeal was filed one day too late.

Although the appellate court is without power to relieve a defendant from his default in filing the notice beyond the 10-day period, it is now well settled that where a defendant is in custody, so that he has no personal access to the proper clerk's office, his notice of appeal will be deemed to have been constructively delivered within the prescribed time if he places the notice 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-day period has elapsed. People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868.

In an attempt to bring himself within this rule the defendant has filed affidavits with this court in which it is averred that, after the rendition of judgment on October 18, 1957, he was sent to the Reception Center at Vacaville, where he was received on October 21, 1957; that on October 23, 1957, he delivered a handwritten notice of appeal to the proper prison officials and was told that notices of appeal had to be typed before being placed in the mail; ¹ that on October 25, 1957, this notice of appeal was returned to him with the statement that it could not be typed; that on October 27, 1957, he delivered another handwritten notice of appeal to the proper inmate clerk.

The Superintendent of Vacaville avers that the prison records show that defendant delivered his notice of appeal to the proper prison officials 'on or before Monday, October 28, 1957,' and that it was mailed on the 28th to the proper clerk's office; ² that the records of the prison do not show the precise date on which the notice was delivered to the prison officials, but that he has been informed by defendant that it was on the 27th, a Sunday; that under procedures then in effect at Vacaville such notices were normally processed and mailed the same day they were received by the prison officials if delivered on any week day; that because the facility operates with a reduced staff on Saturdays and Sundays, such notices were not processed on such days and, if received after 4:30 p. m. on Fridays, were not mailed until the next Monday. It is also averred that in October, 1957, the Reception Guidance Center was just being moved to Vacaville so that 'procedures were not very well established.'

It is our opinion that defendant has brought himself within the spirit of the rule of the Slobodion case. Under the most limited interpretation of the affidavits, it is apparent that the notice of appeal was properly delivered by defendant on October 27th. Had it been mailed that day it would have reached the county clerk's office in San Francisco on October 28th. Had this been done, the notice of appeal would have been filed in time. According to Howard's affidavit, which is not contradicted, he properly delivered a handwritten notice on October 23rd, was told that it had to be typed, and on the 25th was told that it could not be typed. There is, of course, no legal requirement that notices of appeal must be typed, and, in fact, the notice of appeal that was ultimately mailed was in handwriting. Had the notice of appeal been mailed on the 23rd or 24th, it would, obviously, have reached the clerk's office in San Francisco well before the 28th.

A prison must, of course, have rules and regulations governing the conduct of inmates. But such rules and regulations cannot be used to impair an inmate's important and constitutional right to appeal. In People v. Tenney, 162 Cal.App.2d 458, 328 P.2d 254, 255 (petition for hearing denied) it was stated: 'It is now well settled that, if the defendant is in custody, and makes a good faith effort to file the required notice within the statutory period, but is prevented from doing so by the acts of the prison authorities, the appeal will be considered as having been filed in time. The theory is that, if the notice of appeal is delivered to the prison officials within the statutory period with a request to mail it, such delivery is a constructive delivery to the appropriate county clerk, and the subsequent failure of the prison officials to prepare and mail the notice within time cannot adversely affect the rights of defendant.' That case held that if the notice of appeal was delivered to the prison officials on the 9th day after rendition of judgment, mailing time between Vacaville and San Francisco being one day, it was filed in time. This principle was reaffirmed in People v. Griffin, 162 Cal.App.2d 712, 328 P.2d 502 (petition for hearing denied).

The attorney general argues that these cases should be overruled. Attention is called to the fact that, according to the affidavits of the prison officials, the notice was delivered to them on October 27th, and, although if then mailed it would have been received in time on the 28th, the 27th was a Sunday, and, under prison procedures, no mail is processed if received after 4:30 p. m. on Friday, until the following Monday. Thus, so it is urged, the defendant was negligent in not delivering his notice before 4:30 p. m. on Friday, October 25th, and the delay was chargeable to him and not to the prison officials. Aside from the fact that defendant avers that he first delivered the notice for mailing on October 23rd, and assuming that it was not delivered for mailing until Sunday the 27th, the argument of respondent misinterprets the basic theory of the Slobodion case, and of those cases following it. Those cases recognize that a person in custody is hampered in protecting his legal and constitutional rights. As long as he acts promptly and the delay in mailing is not his fault, the notice will be deemed to have been constructively delivered. The rule is not predicated upon a showing that the prison officials were fraudulent or negligent in not mailing the notice sooner. As long as the defendant has not caused the delay and has acted within time, the notice will be deemed to have been constructively delivered whatever was the cause of the delay. However reasonable it may be to adopt a rule that notices of appeal must be typed, or a rule that no mail will be processed from Friday after 4:30 p. m. until Monday, such rules cannot be used to cut down the defendant's very limited time in which to appeal. As long as he acts promptly and in time, the prison rules cannot be used to deprive the defendant of his constitutional right of appeal. Thus, the rule of the Tenney and Griffin cases is sound and is reaffirmed. Under that rule the notice of appeal here involved was filed in time.

We turn to a consideration of the appeal on its merits. On the evening of July 12, 1957, the home of the Wolfsohns on Florence Street in San Francisco was burglarized. Among the property taken, most of which was subsequently found in the possession of defendant and identified by the Wolfsohns or others, were certain cultured pearls, a matching cigarette case and compact, gold earrings, a suit of clothes and a dress.

On the evening of July 19, 1957, or the early morning hours of July 20th, the apartment of the Bernsteins on Montgomery Street in San Francisco was burglarized. Among the property taken, all of which was subsequently found in the posession of defendant and identified by the Bernsteins, was a grey cabinet containing a strong box filled with papers, and a woman's raincoat. The Bernsteins also identified a tan corduroy jacket found by them in their apartment after the burglary and which did not belong to them.

There were no eyewitnesses to the above crimes. No one saw defendant make the unlawful entries, nor did anyone see him near or about the burglarized premises on the nights in question. The evidence first connecting defendant with these crimes came from one Marlene, a 21 year old married woman, who had been living with defendant as his mistress for some time prior to the burglaries. She testified that on the evening of July 12, 1957, defendant, accompanied by a man named Paul, came to the apartment she occupied with defendant sometime between 10 and 11 p. m.; that they were then carrying certain itmes of property which they proceeded to divide; that among the property were the matching compact and cigarette case, the pearls, the gold earrings and the dress, all later identified by the Wolfsohns. Marlene also stated that defendant had the suit stolen from the Wolfsohns and identified by them which, defendant took to a tailor for alterations and from whom it was later recovered.

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