People v. Riser

CourtUnited States State Supreme Court (California)
Citation47 Cal.2d 594,305 P.2d 18
Docket NumberCr. 5896
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Roscoe R. RISER, Defendant and Appellant.
Decision Date31 December 1956

Walter C. Hancock, Public Defender, Stanislaus County, and William R. Lundgren, Deputy Public Defender, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Roscoe R. Riser and his brother Richard G. Riser were found guilty by a jury of murder in the first degree. The jury fixed the punishment at life imprisonment for Roscoe Riser. A motion for a new trial was denied, and on February 24, 1956, judgment was entered on the verdict. Richard Riser's appeal to this court is automatic under section 1239(b) of the Penal Code, but to perfect an appeal defendant Roscoe Riser was required by rule 31 of the Rules on Appeal to file his notice of appeal 'within 10 days after the rendition of the judgment * * *.' Defendant did not file a notice of appeal until March 30th, considerably beyond the ten-day period. The People have filed a motion that the appeal be dismissed because defendant did not file his notice of appeal within the required time.

In an affidavit the deputy public defender, one of defendant's counsel, gives an explanation of the delay. He states that prior to judgment he discussed with defendant the question of appeal, but they reached no decision; that late in the morning of February 24th, after judgment had been entered, he and the public defender attempted to get in touch with defendant at the county jail only to find that he had already been sent to Dan Quentin; and that during the succeeding ten days, they received no communication from him and consequently took no action to perfect an appeal.

Defendant contends that in view of the seriousness of the sentence the appeal should be allowed because of the difficulty of communication between him and his counsel, because the delay in filing was owing to no fault of defendant, and because the points on appeal would be the same as those raised by the automatic appeal of Richard Riser.

In support of this contention, defendant cites People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868. In that case we declined to dismiss an appeal where a prisoner had deposited his notice of appeal with prison employees and the lateness of filing was wholly attributable either to the negligence of those employees or to prison routine. The appellant had done all he could to assure timely filing. Recently, in People v. Head, 46 Cal.2d 886, 299 P.2d 872, we refused to dismiss an appeal where the appellant had relied on the representations of prison officials that his appeal would be taken care of. Thus the state, which establishes the time limit for appeals, may not frustrate those within its control from meeting the requirement, whether by the slowness of prison methods or by the negligence or misleading assurances of its employees.

The more fact, however, that an appellant is incarcerated during the time for filing is not enough to invoke the Slobodion rule, since it does not point to the state as the cause...

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16 cases
  • People v. Teale
    • United States
    • United States State Supreme Court (California)
    • 25 Febrero 1969
    .......         In the instant case 14 veniremen were excused for cause because of their conscientious opinions relative to the death penalty. (See Pen.Code, § 1074, subd. 8; People v. Gonzales (1967) 66 Cal.2d 482, 497, 58 Cal.Rptr. 361, 426 P.2d 929; People v. Riser (1956) 47 Cal.2d 566, 575--576, 305 P.2d 18.) Of these, several were excused when, after manifesting opposition to capital punishment in general language, they responded in the affirmative to the court's inquiry whether such opposition would prevent them from rendering the verdict of death 'in a ......
  • Benoit, In re, Cr. 16642 and 16627
    • United States
    • United States State Supreme Court (California)
    • 24 Septiembre 1973
    ...the holding in Lewis with approval in In re Del Campo (1961), 55 Cal.2d 816, 817, 13 Cal.Rptr. 192, 361 P.2d 912. In People v. Riser (1946), 47 Cal.2d 594, 305 P.2d 18, the People moved to dismiss the appeal on the ground notice of appeal had not been filed within the required period. The c......
  • People v. Dailey
    • United States
    • California Court of Appeals
    • 5 Noviembre 1959
    ...court has no power to relieve a defendant from his default in the event he files the notice beyond the period specified. People v. Riser, 47 Cal.2d 594, 305 P.2d 18; People v. Howard, 166 Cal.App.2d 638, 641, 334 P.2d 105. However, it had been held where an appellant is confined in a state ......
  • Joseph v. Klinger, 21339.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Mayo 1967
    ...305, (1960); People v. Piccionelli, 175 Cal.App.2d 391, 346 P.2d 542 (1959). See, as to the duty of a public defender, People v. Riser, 47 Cal. 2d 594, 305 P.2d 18 (1956). There is no evidence in the record before us that the representation by appellant's counsel below could have been inade......
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