People v. Tenney

• Decision Date: 31 July 1958
• Docket Number: Cr. 3441
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert TENNEY, Defendant and Appellant.

Page 254

328 P.2d 254

162 Cal.App.2d 458

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert TENNEY, Defendant and Appellant.

Cr. 3441.

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

July 31, 1958.

Hearing Denied Sept. 24, 1958.

George S. Youngling, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant, Robert Tenney, on three separate counts, was convicted of the unlawful possession, sale, and transportation of narcotics. He appeals from the judgment of conviction.

The attorney general contends that the notice of appeal was filed too late. Judgment was entered on August 12, 1957. The notice of appeal, dated August 26, 1957, was not filed with the clerk of the Superior Court until August 29, 1957. Under Rule 31 of the Rules on Appeal such notices must be filed within 10 days after the rendition of the judgment. This rule is jurisdictional. People v. Riser, 47 Cal.2d 594, 305 P.2d 18. Thus, the appeal here involved appears to have been filed too late. But the rule is not absolute in its application. It is now well settled that, if the defendant is in custody, and makes a good faith effort to file the required notice within the statutory period, but is prevented from doing so by the acts of the prison authorities, the appeal will be considered as having been filed in time. The theory is that, if the notice of appeal is delivered to the prison officials within the statutory period with a request to mail it, such delivery is a constructive delivery to the appropriate county clerk, and the subsequent failure of the prison officials to prepare and mail the notice within time cannot adversely affect the rights of defendant. People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868; People v. Head, 46 Cal.2d 886, 299 P.2d 872.

The facts of the present case are such as to bring it within the rule of these cases. The affidavits disclose that after the judgment of August 12, 1957, on August 14th, defendant was sent to the reception center at Vacaville. He avers that on August 19, 1957, he 'prepared in writing and submitted a Notice of Appeal' to the proper prison officials; that three or four days later he was informed by a prison clerk that the prison office had been delayed in typing his notice of appeal because of a heavy work schedule and that the Superintendent would notify the proper officials that the delay was no fault of defendant; that the notice of appeal was not typed up until August 26, 1957, and not received by the county clerk until August 29, 1957. The Superintendent at Vacaville avers that defendant applied for a 'Notification of Intent to Appeal' to the prison officials on August 21, 1957, but that due to the work schedule in the prison it was not executed until August 26, 1957. It is further pointed out in that affidavit that, in August of 1957, Vacaville was in the process of organization and the staff disorganized and for this reason appellant 'was not given the opportunity to execute the Notification of Intention to Appeal until August 26, 1957.'

Thus, the only conflict is whether the notice to prepare the notice of appeal was delivered to the prison officials on August 19th or 21st. This conflict is immaterial. Either date, plus mailing time, was within the 10-day period. Thus, the notice of appeal was constructively filed in time.

On the merits, the facts are as follows: One John Keeys, a recent arrival from New York, in March of 1957, was employed as a salaried employee by the State Bureau of Narcotic Enforcement as an undercover agent. Pursuant to instructions, he took up residence in a Fillmore district hotel in San Francisco and began to make narcotic purchases from various individuals. Early in April, 1957, Keeys met the defendant on two occasions and talked to him 'vaguely' about narcotics. On April 17, 1957, about 7:30 p. m. he again met the defendant in front of a pool room on Fillmore Street. Keeys asked defendant if he had seen one Johnson, a known narcotic peddler in the area. Defendant replied that he had not, and asked Keeys 'if I wanted some stuff, or needed some stuff, that he had bought some himself, and was going to cut it up, and he would sell me some.' Keeys agreed to the purchase and defendant suggested that the transaction be completed at his mother's house, some two blocks distant. Keeys agreed and told defendant that he wanted to purchase $5 worth of heroin.

When the two men arrived at the home of defendant's mother, no one was there, and they were unable to get in. Keeys suggested that they go to his hotel room to complete the transaction. Defendant agreed. The two then proceeded to Keeys' room. Defendant thereupon produced two packages of white powder which he mixed together and then divided into sections, and then put a small quantity of the powder into a paper and handed it to Keeys. Keeys gave appellant $5 for the bindle, and defendant left with the balance of the powder. The powder delivered to Keeys, upon analysis, was discovered to be heroin. Appellant was arrested on May 2, 1957.

Defendant did not testify. Through his mother and brother he attempted to show that he was in Sacramento on April 17, 1957, but this testimony was obviously not believed by the jury.

Defendant, in three separate counts, was charged with the illegal possession, sale, and transportation of narcotics, all growing out of the facts as testified to by Keeys. He was found guilty on all three counts and was sentenced on each count, the terms to run concurrently. Defendant appeals.

Clearly, the judgment was too inclusive. When a single act relates to but one victim, and violates but one statute, it cannot be transformed into multiple offenses by separately charging violations of different parts of the statute. The Supreme Court has so decided. In People v. Roberts, 40 Cal.2d 483, 254 P.2d 501, the appellant and another defendant were charged with illegally transporting, selling and possessing heroin, and with conspiracy. The defendants were found guilty on all four counts. The Supreme Court held that only the sale and conspiracy convictions could stand. In so holding, the court stated (40 Cal.2d at page 491, 254 P.2d at page 505): 'The information charges and there is evidence that on April 3 defendant Roberts transported, furnished, and possessed heroin. Each of these acts is denounced by section 11500 of the Health and Safety Code. The three acts are charged and adjudged as separate crimes. However, 'cooperative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.' (People v. Clemett (1929), 208 Cal. 142, 144, 280 P. 681; see also People v. Knowles (1950), 35 Cal.2d 175, 187, 217 P.2d 1.) The present case resembles the Clemett case in that the only possession and transportation of heroin shown were those necessarily incident to its sale. And as in the Clemett case (at page 150 of 208 Cal., at page 684 of 280 P.) the error can be corrected by this court.'

This court was presented with the same problem in People v. Branch, 119 Cal.App.2d 490, 260 P.2d 27. We there stated (119 Cal.App.2d at page 495, 260 P.2d at page 30):

'There is one last point that must be considered, and...