People v. Spencer

• Decision Date: 12 June 1961
• Docket Number: Cr. 3840
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lee SPENCER, Defendant and Appellant.

Page 881

13 Cal.Rptr. 881

193 Cal.App.2d 13

PEOPLE of the State of California, Plaintiff and Respondent, v. Lee SPENCER, Defendant and Appellant.

Cr. 3840.

District Court of Appeal, First District, Division 1, California.

June 12, 1961.

James B. Atkin, San Francisco, for appellant, under appointment of the District Court of Appeal.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

Convicted of selling narcotics in violation of section 11501 of the Health and Safety Code, appellant urges on appeal the defense of entrapment. We have concluded, however, that the evidence utterly failed to establish an entrapment as a matter of law and that, in any event, appellant waived such a defense by his failure to raise it at the trial. We find no merit in respondent's assertion that this court lacks jurisdiction to consider the substantive issues of this appeal because 'appellant failed to comply with the requirement that his notice of appeal be filed within ten days of the rendition of judgment.'

On September 3, 1959, two Oakland police officers, who were investigating a case involving receipt of stolen property, stopped Willie Mae Thomas for questioning concerning that case. They found her smoking a marijuana cigarette. The officers took her to police headquarters where they elicted her promise to assist them in making narcotics arrests.

The testimony conflicts as to whether the officers offered Willie Mae any inducement that they would not prosecute her for possession of marijuana in consideration of her aid. Willie Mae asserted that Officer Hilliard asked her if she knew appellant and whether she could buy narcotics from him; that she answered, 'yes'; that she then agreed to act as an agent for them; that she 'guessed' they would not charge her because they wanted her to act as an agent; that she agreed 'in order not to be prosecuted * * *.' Officer Hilliard denied telling Willie Mae, or hearing anyone else tell her, that 'if she assisted and acted as an agent' they 'would not press the charge'; rather he asserted that he told Willie Mae before he asked for her aid that she 'was not going to be charged.'

On September 4th two police officers picked up Willie Mae at about 8:00 or 8:30 P.M. and took her, first, to the Oakland City Hall where a policewoman searched her, and, then, to the Police and Vice Control office. They likewise searched her car and gave her one ten and two five dollar bills from which they had copied the serial numbers and on which they had sprinkled a yellow dye. She drove away in her own car to make contact with appellant.

After driving around the area near appellant's house and asking several people if they had seen him, Willie Mae finally saw appellant at about 9:00 or 9:30 P.M. At her request he got into her car. As they drove along she asked him 'what was happening,' which meant she 'was asking him about some Heroin * * *.' He answered, 'All right' and she asked for a 'ten' (a $10 paper). He said he had only 'two halves' (two $20 papers). She said, 'OK, give me one.' She drove toward his home and he told her to stop the car; he got out of the car, crossed the street, bent over, straightened, and returned to the car. She gave him the marked money and he handed her a red balloon containing heroin, which she turned over to the police.

Police officers in unmarked cars observed Willie Mae's search for appellant and her contact with him. They saw appellant leave the car, cross the street, 'stoop down and straighten up,' and return to the car. Willie Mae and appellant's hands met and they 'appeared' to 'pass something.'

Two officers arrested appellant and found the marked money on his person. He denied selling narcotics to Willie Mae, a position that he also maintained at the trial, and claimed that she had given him the money in payment of a debt. Appellant nevertheless was convicted.

Turning, first, to respondent's assertion that this court lacks jurisdiction to hear this appeal because 'appellant failed to comply with the requirement that his notice of appeal be filed within ten days of the rendition of judgment,' we shall point out why we have decided that appellant's notice of appeal sufficed to effectuate his appeal.

The facts on which respondent posits its jurisdictional argument are these: Appellant was convicted of selling narcotics on January 12, 1960. On January 19, 1960, within the ten day period after-conviction permitted for indicating his intent to appeal, appellant deposited two letters with the prison officials, both of which were dated January 18, 1960, addressed to the clerk of the Superior Court of Alameda County. Appellant signed both letters. One letter contained this language: 'I was convicted of Sails of narcotics in your court and sentences to the Department of Corrections on 12 January 1960. I wish to appeal my case.' The second letter contained the same language, except that it omitted the words 'I wish to appeal my case.' On January 20, 1960, the prison officials forwarded to the clerk of the Superior Court of Alameda County the letter which did not contain the language 'I wish to appeal my case.' The letter containing that language was retained in the prison files.

The clerk of the superior court refused to prepare and certify a record on appeal on the ground that he had not received a notice of appeal. Appellant filed a petition for a writ of mandate ordering the clerk to prepare and certify a record which this court treated as 'an application for relief under the provisions of Rule 31a of the Rules on Appeal * * *.' While expressly reserving to the attorney general the right 'to challenge the timeliness of the notice of appeal when the appeal comes before us on the merits,' we ordered the Department of Corrections to forward to the clerk the letter deposited with the prison officials which contained the language 'I wish to appeal my case' and directed the clerk 'to file it and thereafter prepare and certify to this Court the record on appeal.'

Rule 31(a) of the Rules on Appeal requires an appellant to file 'written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment * * *.' The rule is well settled that 'the time requirements for the taking of an appeal are mandatory' and 'the appellate courts are without jurisdiction to consider an appeal which has been taken subsequently to the expiration of the statutory period.' People v. Slobodion, 1947, 30 Cal.2d 362, 365, 181 P.2d 868, 870; People v. Lewis, 1933, 219 Cal. 410, 413, 27 P.2d 73.

When, however, a prisoner attempts to prosecute an appeal by delivering his notice of appeal to prison officials for forwarding to the clerk, such delivery, if made within the prescribed time limit, constitutes a 'constructive filing' and satisfies the jurisdictional requirement. People v....