People v. Martin

• Decision Date: 26 December 1963
• Docket Number: Cr. 7427
• Citation: 60 Cal.2d 615,387 P.2d 585,35 Cal.Rptr. 769
• Court: California Supreme Court
• Parties: , 387 P.2d 585 The PEOPLE, Plaintiff and Respondent, v. Ronald Paul MARTIN, Defendant and Appellant.

Page 769

35 Cal.Rptr. 769

60 Cal.2d 615, 387 P.2d 585

The PEOPLE, Plaintiff and Respondent, v. Ronald Paul MARTIN, Defendant and Appellant.

Cr. 7427.

Supreme Court of California, In Bank.

Dec. 26, 1963.

Burton Marks, Beverly Hills, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

PEEK, Justice.

The People of the State of California move to dismiss the appeal of Ronald Paul Martin from a judgment of conviction of armed robbery in two counts.

Defendant chose to appear and defend in propria persona at the trial of the causes. Jury verdicts of guilty were rendered on August 23, 1962, at which time defendant waived probation and time for sentencing. Judgment of conviction was entered and he was thereupon sentenced to the state prison for the term prescribed by law.

Five days later on August 28, 1962, defendant presented to the clerk a notice of motion for a new trial. The clerk filed the notice and there appears on the document, immediately above the clerk's certificate of filing, the following: 'Ordered filed by Judge Frank C. Charvat,' which judge had presided throughout the proceedings in the superior court.

The motion was set to be heard on September 7, 1962, more than 10 days after the entry of judgment. On that date the motion was argued and denied. Immediately following the denial defendant stated in open court that he would forthwith file his written notice of appeal, and requested the court to set bail pending appeal. During a short discussion on the question of whether defendant was entitled to bail, neither the court nor the prosecuting attorney questioned the right to appeal. Bail was denied on that same day and defendant presented his written notice of appeal and it was filed by the clerk. Inscribed on the notice immediately above the clerk's certificate of filing is the statement: 'Ordered filed by Judge Charvat.' The notice specified those portions of the record to be prepared in support of the appeal, and the record on appeal is now substantially complete.

The motion for dismissal is made on the ground that the appeal is not timely in that it was not filed within 10 days after rendition of the judgment on August 23, as required by rule 31, California Rules of Court. That rule provides in part as follows: 'In the cases provided by law, an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment or the making of the order * * *.' It is noted that the appeal could have properly related only to the judgment, and not to the order denying the motion for a new trial as the latter is not an appealable order. (Pen.Code, § 1237.)

It has been held that rule 31 is mandatory in its application (People v. Behrmann, 34 Cal.2d 459, 461-462, 211 P.2d 575; People v. Lewis, 219 Cal. 410, 27 P.2d 73), and that the 10-day period for filing may not be extended. (Rule 45(c), Cal.Rules of Court.) However, when a defendant has diligently sought to file a timely notice but has been frustrated due to some default on the part of public officials charged with the administration of justice, a late filing has been deemed sufficient. Thus in People v. Head, 46 Cal.2d 886, 299 P.2d 872, a late filing by a prisoner who was advised by prison officials that his notice of appeal would be typed and available for signing in sufficient time for filing was excused under the principle first announced in People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868.

In both the Head and Slobodion cases the prisoners had delivered a notice, whether in final or preliminary form, within the time allowed, and this was deemed to constitute a 'constructive' filing of the notice as required by rule 31. However, in the Head case we approved an extension of the Slobodion rule to the situation where even no timely 'constructive' filing had been made within the statutory time, in the following language: 'In People v. Calloway, supra, 127 Cal.App.2d 504, 274 P.2d 497, the defendant was informed by the prison authorities that he had plenty of time to file his notice of appeal and would be given a pass to call on his counsel for the purpose of preparing and filing the notice. He was transferred to another prison, however, and placed in quarantine until the 10 days had expired. The court said, 127 Cal.App.2d at page 506, 274 P.2d at page 498: 'This evidence falls short of presenting the precise factual situation which obtained in People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868, but, undenied as it is, it tends to make a prima facie showing that defendant was lulled into a false sense of security by a representative of the state, the opposite party in the litigation. Accordingly, as stated in People v. Graff, 104 Cal.App.2d 32, 34, 230 P.2d 654, 656, '* * * the facts in this case come close enough to the exception to the rule stated in People v. Slobodion * * *, that this court is of the opinion it would be better to consider and pass upon the contentions made by defendant.'''

It is contended in the instant case that, due to default or implied representations by the trial court and prosecutor, defendant was 'lulled into a false sense of security' by representatives of the state. When defendant filed his notice of motion...