People v. O'Neil

• Decision Date: 25 May 1966
• Docket Number: Cr. 9136
• Citation: 51 Cal.Rptr. 250,414 P.2d 378,64 Cal.2d 666
• Court: California Supreme Court
• Parties: , 414 P.2d 378 The PEOPLE, Plaintiff and Respondent, v. George Timothy O'NEIL, Defendant and Petitioner. In Bank

Page 250

51 Cal.Rptr. 250

64 Cal.2d 666, 414 P.2d 378

The PEOPLE, Plaintiff and Respondent, v. George Timothy O'NEIL, Defendant and Petitioner.

Cr. 9136.

Supreme Court of California,

In Bank.

May 25, 1966.

Frank C. Morales, Los Angeles, under appointment by the Supreme Court, for defendant and petitioner.

Thomas C. Lynch, Atty. Gen., Roger E. Venturi and Daniel J. Kremer, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Petitioner seeks relief under rule 31(a) of the California Rules of Court from his default in failing to file his notice of appeal within 10 days from the date of judgment as required by rule 31(a).

In his petition for a hearing in this court petitioner asserted that, during the vital 10-day period, he had told his attorney, the public defender, that he desired to appeal, and asked the attorney to appeal or to tell him how to do so; that the attorney did neither. I was also averred that after the date of judgment and while he was still in the county jail (presumably within the 10-day period), he wrote out a notice of appeal, placed it in the mail slot, saw the jail attendant pick it up, and he believed it had been picked up for mailing. These facts, if true, and if seasonably urged, would have entitled petitioner to the relief requested. (People v. Diehl, 62 Cal.2d 114, 41 Cal.Rptr. 281, 396 P.2d 697; People v. Madrid, 62 Cal.2d 602, 43 Cal.Rptr. 638, 400 P.2d 750; People v. Collier, 62 Cal.2d 543, 43 Cal.Rptr. 1, 399 P.2d 569; In re Gonsalves, 48 Cal.2d 638, 311 P.2d 483.) To ascertain the truth of these alleged facts we appointed the Honorable Warren Steel, Retired Judge of the Superior Court of Yuba County, as referee and submitted to him the following six questions:

1. Within 10 days after rendition of judgment, what, if anything, did petitioner state to his attorney in regard to an appeal?

2. Within this 10-day period, what, if anything, did the attorney say or do in regard to an appeal?

3. Within the 10-day period, did petitioner write out a notice of appeal and, if so, what efforts were made to forward the notice to the clerk of the court?

4. After his arrival at the Vacaville Medical Facility, was petitioner told by either the officers or personnel of the facility that it was then too late to perfect an appeal?

5. What are the general grounds upon which the proposed appeal is to be predicated?

6. Are there any grounds for holding that petitioner is estopped or has waived his right to move for a delayed appeal at this time?

After a full hearing, at which petitioner, represented by counsel, was present and testified, the referee found in reference to question number 1 that 'nothing was said by petitioner to his attorney in regard to an appeal.' In reference to question number 2 the referee found that during the 10-day period the attorney said nothing about an appeal; that during this period the petitioner did express to the attorney dissatisfaction with the result obtained and stated that a private attorney rather than the overworked public defender might have done a better job. In reference to question number 3 the referee found that petitioner claims to have written and mailed a letter of inquiry to the Clerk of the Supreme Court of California, at Sacramento, asking for advice about an appeal. In answer to question number 4 the referee found that after petitioner had arrived at Vacaville he was told by some attache of the library or by an inmate that it was too late to appeal. As to question number 5 the referee found that the only posible ground urged that is legally permissible on such an appeal is the charge that he was inadequately represented by counsel when he changed his plea from not guilty to guilty. In regard to question nbumber 6 the referee found there were no grounds for estoppel or waiver, and that petitioner had diligently pursued his rights.

The first five findings are amply supported, correctly interpret the record, and should be and are adopted as the findings of this court.

The record shows that in 1963 petitioner was charged with two counts of assault with a deadly weapon. (Pen.Code, § 245.) He was duly and properly informed of his legal rights, including his right to counsel. Upon being informed that petitioner was indigent, the trial court appointed the public defender as petitioner's counsel. Throughout the balance of the proceedings he was represented by such counsel. He was duly arraigned, and on March 15, 1963, pleaded not guilty to both counts, with April 1, 1963, set as the date for trial. On that date, with counsel present, petitioner requested permission to withdraw his pleas of not guilty, and, upon such permission being granted, personally pleaded guilty to both counts of the charge. After a probation report was filed and considered by the court, on April 19, 1963, petitioner was found guilty of the two offenses to which he had pleaded guilty, and was sentenced to prison for the terms prescribed by law, the terms to run concurrently.

The record also shows that in September of 1964 petitioner filed a petition for a writ of Error coram nobis with the trial court, contending that he was interrogated without counsel before he confessed in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. This petition was denied by both the superior and appellate courts. Thereafter, petitioner applied for a writ of habeas corpus, and when this was denied, in May of 1965 filed this petition under rule 31(a) for relief from his default.

In his testimony, in response to the first three questions, the petitioner asserted that prior to the date of sentence he told his attorney that he was going to appeal if he got a prison sentence instead of a jail sentence, and that the attorney told him that this was his prerogative. Then he claimed, immediately after he was sentenced, that his attorney visited him in the county jail, and petitioner again told the attorney he was going to appeal and asked the attorney how to go about it. The attorney simply told him that he had plenty of time. Petitioner also testified that within the 10-day period after rendition of judgment he wrote to the Clerk of the Supreme Court at Sacramento asking advice as to how to appeal, and that he saw the jail attendant pick this letter up from the mail slot, apparently for mailing. There is no evidence that such a letter was ever received by the clerk or by anyone else, and no other evidence that such a letter was ever written. There is some evidence from attaches of the county jail indicating that they have no recollection of such a letter.

The attorney testified that at no time did he ever talk with petitioner about the possibility of appealing. He did state that before petitioner changed his pleas to guilty, he did tell the attorney that if he lost the case at trial he intended to appeal. The attorney testified that he did not advise the change of pleas but did tell the petitioner that if he pleaded guilty there was a faint possibility that the trial court might impose a jail rather than a prison sentence. He also testified that petitioner personally suggested the change of pleas on April 1st after he had entered the courtroom and saw that the two victims of his alleged assaults were present, and after he had been told by his attorney that two defense witnesses in Nevada who had been suggested by petitioner had been interviewed by the attorney and that both had refused to come to California to testify. Three other defense witnesses, however, were then under subpena. The attorney testified that he advised against the change of pleas, but petitioner insisted, and guilty pleas were entered. After sentence, the attorney stated, nothing at all was...