People v. Tucker

• Decision Date: 06 October 1964
• Docket Number: Cr. 7653
• Citation: 395 P.2d 449,40 Cal.Rptr. 609,61 Cal.2d 828
• Court: California Supreme Court
• Parties: , 395 P.2d 449 The PEOPLE, Plaintiff and Respondent, v. Homer T. TUCKER, Defendant and Appellant.

Page 609

40 Cal.Rptr. 609

61 Cal.2d 828, 395 P.2d 449

The PEOPLE, Plaintiff and Respondent, v. Homer T. TUCKER, Defendant and Appellant.

Cr. 7653.

Supreme Court of California, In Bank.

Oct. 6, 1964.

Homer T. Tucker, in pro. per., and Frank C. Morales, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

This is a petition by Homer T. Tucker under rule 31(a) of the California Rules of Court ¹ for relief from a late filing of a notice of appeal in a criminal case. This is one of a series of cases involving the proper interpretation of that rule. It has already been determined that such rule confers power on the appellate courts to grant relief from a late filing, and that such rule should be liberally interpreted so as to protect the right of appeal. (People v. Casillas, 61 A.C. 381, 38 Cal.Rptr. 721, 392 P.2d 521.)

Petitioner was convicted of second degree murder. He was then represented by a court-appointed attorney who did, however, receive $800 from relatives of petitioner as a fee. Petitioner was sentenced on July 14, 1963. He filed a notice of appeal on September 27, 1963, obviously late. Pursuant to rule 31(a), the superior court clerk notified petitioner that his notice had been offered for filing late and that he could petition the appellate court for relief from default. This he has done, and this court has appointed counsel for him. Because there appeared to be a conflict between defendant and his original attorney over the pertinent facts, the Honorable Edward Henderson, Retired Judge of the Superior Court of Ventura County, was appointed as referee to determine the facts. The referee was directed to hold a hearing and to submit answers to the following two questions:

'1. Within 10 days of rendition of judgment, what, if anything, did Tucker state to the attorney who represented him at the trial with regard to an appeal?

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

The referee, in answer to the first question, found that: 'Judgment was pronounced upon defendant on July 14, 1963. On July 16th, 1963, at the interview room of Alameda County Jail, the defendant stated to the attorney then representing him that he wanted to appeal his case.' In answer to the second question the referee found that at that time and place 'the attorney then representing defendant stated she would appeal his case although no grounds for appeal were disclosed by the record. During the balance of the ten-day period his trial lawyer failed to either inform him of the requirement of filing a sufficient notice of appeal or to do anything further in the prosecution of the appeal.'

These findings are based on the following record. The petitioner testified that within a couple of days after his conviction he had a conference with his then attorney, and requested her to appeal, and that she promised to do so. For a time petitioner believed that such an appeal had been taken, and did not find out that such was not the fact until September of 1963. In that month he wrote to his attorney in reference to securing transcripts. Under date of September 12, 1963, the attorney responded, somewhat ambiguously, that it would cost several hundred dollars for such transcripts, and that it was the opinion of the attorney that there were no valid grounds for an appeal. The letter concluded that if defendant wanted to appeal he should request the appellate court to appoint counsel.

Of course, in a criminal case, on a proper appeal, a defendant is not required to pay for a transcript. (People v. Smith, 34 Cal.2d 449, 453, 211 P.2d 561.) This rule, however, would not seem to be applicable where the time for appeal has expired, and relief has not been granted under rule 31(a). (Cf. 33 State Bar J. 488, 497-499.)

The attorney involved, by letter to the Attorney General and by her testimony before the referee, denied that petitioner had requested her to file an appeal, claimed that in the conference referred to above there had been no mention of an appeal, and that she did nothing to imply that she would file an appeal. In her letter to the Attorney General she stated that if petitioner was willing to waive the attorney-client privilege she could produce records to justify her position. Of course, the rule as to privileged communications does not exclude evidence as to the instructions or authority given by the client to his attorney. (Henshall v. Coburn, 177 Cal. 50, 54, 169 P. 1014; Pacific Tel. & Tel. Co. v. Fink, 141 Cal.App.2d 332, 335, 296 P.2d 843; Fleschler v. Strauss, 15 Cal.App.2d 735, 739, 60 P.2d 193; see also Witkin, Cal. Evidence, § 419, p. 469.) The referee properly so ruled at the hearing, but no such records were produced.

It is true that the evidence is conflicting. The referee determined such conflict in favor of petitioner. The referee's findings are based on substantial and convincing evidence. Such findings are, of course, not binding on this court, but they are entitled to great weight. (In re Riddle, 57 Cal.2d 848, 853, 22 Cal.Rptr. 472, 372 P.2d 304, and cases there cited.) We have independently reviewed the record. Such review impels the conclusion that the referee's findings should be adopted as the findings of this court, and they are so adopted.

Should this court, under such findings, exercise the jurisdiction conferred by rule 31(a) and grant the relief requested? We think these questions should be answered in the affirmative.

In the Casillas case, supra, 61 A.C. 381, 38 Cal.Rptr. 721, 392 P.2d 521, it was held not only has an appellate court, under proper circumstances, jurisdiction to grant relief in such cases, but that the power to so act should be liberally exercised to avoid, if possible, the loss of the right to appeal. The case stands for the proposition that when an attorney agrees, within the 10-day period, to appeal, and does not do so, and the defendant is free of fault, relief should ordinarily be granted.

This proposition is sound. The whole...