People v. Kirk

• Decision Date: 11 February 1952
• Docket Number: Cr. 4733
• Citation: 109 Cal.App.2d 203,240 P.2d 630
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. KIRK et al.

Page 630

240 P.2d 630

109 Cal.App.2d 203

PEOPLE v. KIRK et al.

Cr. 4733.

District Court of Appeal, Second District, Division 3, California.

Feb. 11, 1952.

Ronald Lloyd Barker, in pro. per.

Edmund G. Brown, Atty. Gen., Frank Richards, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

On June 15, 1950, judgment was rendered adjudging that defendant be punished by imprisonment in the state prison. He had previously been charged with and convicted of three felonies: grand theft, robbery, and a violation of section 503 of the Vehicle Code. In a letter dated June 23, 1950, sent by mail, defendant gave notice of appeal from the judgment. The notice of appeal was received by the clerk of the superior court on June 27, 1950. The envelope containing the notice of appeal was postmarked June 26, 1950, at 12:30 p. m. During the period between June 15 and June 27, 1950, defendant was confined in the county jail of Los Angeles County.

On June 28, 1951, defendant made a motion that the court require the clerk to prepare the record on appeal. The motion was denied on the ground the notice of appeal had not been filed with the clerk within ten days after rendition of the judgment, as required by rule 31 of the Rules on Appeal. 36 Cal.2d 1, 26. Defendant appeals from the order denying the motion.

The tenth day after the rendition of the judgment fell on Sunday, June 25, 1950. The ten-day period was thus extended to Monday, June 26, 1950. Code Civ.Proc. § 12a(a).

The rule is that the time for filing a notice of appeal is mandatory and jurisdictional; and if the notice is filed after the expiration of the statutory period, neither the trial court nor a reviewing court can afford relief. People v. Behrmann, 34 Cal.2d 459, 461, 211 P.2d 575.

The motion was submitted to the court below on an affidavit of defendant in support of the motion and affidavits of five deputy sheriffs filed in opposition to the motion. The affidavit of defendant averred that on June 23, 1950, he wrote and signed a proper notice of appeal and placed it in a 'stamped covered envelope which was left unsealed subject to censorship rules' of the jail. The letter, so he averred, was addressed to 'County Clerk, Division 43 [the department in which defendant was convicted and sentenced], Los Angeles County Court.' He stated that in accordance with the rules of the jail, he placed the letter in and upon and between the bars of the entering door of the cell in which he was confined on June 23, 1950, 'to be picked up by the Los Angeles County Deputy Sheriff in charge, and that he did pick up said letter on the 23rd day of June 1950 to be censored according to the rules of said County Jail and then placed into the United States Mail.'

The affidavits in opposition to the motion were made by all the deputy sheriffs who were in charge of, and who participated in, reading, censoring, and mailing letters and correspondence proffered by prisoners on June 23 to June 26, 1950, both inclusive, between 4:00 p. m. and 12:00 p. m. Taken together they averred: all mail emanating from cells and cell blocks, and proffered by prisoners for mailing, is picked up by deputy sheriffs having supervision over prisoners in the cells, and by such deputies is put in a prescribed place in the office of the sheriff to which prisoners do not have access; all mail and correspondence proffered by prisoners is read, examined, and censored by deputies, assigned to such work, between 6:00 p. m. and 9:00 p. m. of each day; all mail and correspondence which has passed censorship is placed in the United States mail by use of a mail chute which is connected with a pickup mail box on the second floor of the Hall of Justice in which the jail is located; no mail proffered by prisoners is held over past 9:30 p. m.; all mail not passing censorship is returned to the prisoners who proffer it; no record was kept of any correspondence or documents which were examined and censored on any of the days in question; no incident of holding over any mail proffered by a prisoner occurred in July, 1950; defendant had the privilege to use the mails; if any document or letter, such as described by defendant in his affidavit, had been proffered by him, it 'would have been mailable under the rules of and in accordance with the practice of the Sheriff's Office of Los Angeles County and would have been mailed in the United States mails in the manner above described not later than 9:30 p.m., of the date on which this same was proffered by the prisoner for mailing'; all letters, documents, and correspondence examined, censored, and passed by them for mailing, were mailed before or at 9:30 p. m. on the date they were examined; all outgoing mail from prisoners in the jail on each of said days was censored and mailed. None of the deputy sheriffs had any recollection as to whether defendant, during the days mentioned, proffered for mailing, or that there was mailed for him under the rules of the jail, any document such as that referred to by him in his affidavit.

In passing on the motion, the trial judge stated he did not believe the affidavit of defendant. As reasons for his unbelief he stated: defendant did not name the deputy sheriff when he said in his affidavit that the document had been picked up on June 23, 1950; defendant must have known the name of the deputy because he was in jail from February 21, 1950, to the time he was transferred to San Quentin; defendant's affidavit was not corroborated; notwithstanding defendant, at all times up to the time of sentence, was represented by Mr. Noel Martin of the Public Defender's office, an exceptionally able lawyer, he did not discuss the question of appeal with Mr. Martin or ask him to prepare a notice of appeal. The trial judge also said that: because the notice of appeal filed on June 27, 1950, contained the following in the handwriting of defendant, 'My case was finished June the 15th 1950 and I have given my notice of appeal within the required ten days,' defendant 'was trying to put something into the record, knowing at that time that he was not within the time--with the hope through the lapse of time something would occur which might give him an advantage to which he was not entitled'; the fact defendant made no inquiry as to the status of his appeal until April 16, 1951, and did not file his notice of motion until more than a year after he was sentenced, 'indicates that there was a distinct little plan and scheme on the part of the defendant to delay the matter for about a year so that the matter could be placed in a position where evidence would not be as readily available to the People as if he had acted promptly,' and 'if he honestly believed that he had a meritorious appeal pending, [he] wouldn't have waited a period of fully ten months before starting to do something about it'; and if defendant had proffered the notice of appeal on June 23, 1950, as he averred he had done, it would have been mailed on that date. The court concluded that the notice of appeal had not been timely filed.

The rule that a trial judge...