People v. Riser

• Decision Date: 31 December 1956
• Docket Number: Cr. 5896
• Citation: 47 Cal.2d 594,305 P.2d 18
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Roscoe R. RISER, Defendant and Appellant.
• Court: California Supreme Court

Page 18

305 P.2d 18

47 Cal.2d 594

PEOPLE of the State of California, Plaintiff and Respondent, v. Roscoe R. RISER, Defendant and Appellant.

Cr. 5896.

Supreme Court of California, In Bank.

Dec. 31, 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...