People v. Johnson
Decision Date | 15 October 1964 |
Docket Number | Cr. 7742 |
Citation | 395 P.2d 668,40 Cal.Rptr. 708,61 Cal.2d 843 |
Court | California Supreme Court |
Parties | , 395 P.2d 668 The PEOPLE, Plaintiff and Respondent, v. Wallace Lane JOHNSON, Defendant and Appellant. |
Frank C. Morales, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.
Stanley Mosk, Atty. Gen., albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.
This is another in the series of cases involving the proper interpretation and application of RULE 31(A) OF THE CALIFORNIA RULES OF COURT1. Two cases involving these problems have already been decided (People v. Casillas, 61 A.C. 381, 38 Cal.Rptr. 721, 392 P.2d 521; People v. Tucker, Cal., 40 Cal.Rptr. 609, 395 P.2d 449.) The Casillas case, supra, determined that, in a proper case, rule 31(a) confers the power on an appellate court to grant relief from a late filing of the notice of appeal in a criminal case, and that such power should be liberally exercised so as to protect the right of appeal. The Tucker case, supra, held that where the defendant, during the 10-day period in which the notice should be filed, tells his trial attorney that he desires to appeal, and the attorney states that he will do so but does not, and there are no grounds for waiver or estoppel, the court should grant relief.
The facts of this case bring it within the rule of the Tucker case, supra. Petitioner was convicted of robbery and sentenced on June 8, 1962. He was then, and during his trial, represented by a deputy public defender from Los Angeles County. The referee appointed by this court to ascertain the facts, the Honorable Edward Henderson, Retired Judge of the Superior Court of the County of Ventura, found that on the day judgment was rendered, 'the defendant stated to the attorney who then represented him, that he wanted to appeal the case and win it if he had to go all the way because he got a miscarriage of justice.' The referee also found that on that same day In a footnote to this finding the referee points out that the trial attorney was a public defender
The referee also found that the explanation of the delay in presenting the application for relief was that:
These findings are supported by substantial and convincing evidence. The lawyer involved based his denial of having promised to appeal...
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