Thornton, In re
| Citation | 413 P.2d 156,50 Cal.Rptr. 556,64 Cal.2d 484 |
| Decision Date | 25 April 1966 |
| Docket Number | Cr. 8851 |
| Court | United States State Supreme Court (California) |
| Parties | , 413 P.2d 156 In re Ed Mack THORNTON on Habeas Corpus. |
Ed Mack Thornton, in pro. per., and William D. Heekin, Carmichael, under appointment by the Supreme Court, for petitioner.
Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Edward A. Hinz, Jr., Deputy Attys. Gen., for respondents.
This is a petition for habeas corpus by which petitioner seeks to be relieved, under rule 31(a) of the California Rules of Court, from his late filing of a notice of appeal in a criminal case.
The record shows that in 1957 petitioner was convicted and sentenced to the state prison. In 1959 he was paroled. He violated that parole, was returned to prison, and again paroled in 1962. In May of 1963 he was found guilty of a felonious narcotic offense. The imposition of sentence was suspended and petitioner was placed on probation for five years. In 1964 he was charged with unlawful possession of a gun by a felon and also with violation of probation. On April 9, 1964, his probation was revoked because he had been convicted of the possession of a gun (for which he was given one year in the county jail) and he was sentenced on the 1963 narcotic offense to the state prison.
In November 1964 he filed a petition for a writ of error Coram nobis with the superior court, attaching to it a premature notice of appeal. This was summarily denied on December 1, 1964. On February 10, 1965, he filed a petition for a writ of mandate with the District Court of Appeal. That court treated it as a petition for relief from default under rule 31(a) and denied it by order of February 17, 1965. No further relief was sought in that or in the Coram nobis proceeding. Petitioner filed this petition for a writ of habeas corpus April 1, 1965.
It appears that when petitioner was sentenced on April 9, 1964, he was represented by a deputy public defender. Petitioner avers that immediately after the trial judge had imposed sentence he asked the deputy to file a notice of appeal and that the deputy promised to do so. No such notice was filed. If these allegations are true, absent grounds of waiver or estoppel, petitioner would be entitled to the relief he seeks. (People v. Casillas, 61 Cal.2d 344, 38 Cal.Rptr. 721, 392 P.2d 521; People v. Curry, 62 Cal.2d 207, 42 Cal.Rptr. 17, 397 P.2d 1009.)
To ascertain the facts this court appointed as its referee the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County of Marin. A hearing was had at which petitioner represented by counsel was present and testified and the deputy public defender involved also was present and testified. In response to questions propounded by this court the referee found 'that within ten days from the date he was sentenced Petitioner Thornton did not request his trial attorney * * * to file a Notice of Appeal'; 'that Petitioner did not reasonably believe that his then trial attorney would comply with his request'; that the attorney had not 'promised that he would file a Notice of Appeal,' and that 'Petitioner waived his right to a delayed appeal and is estopped thereby.' The referee explained these findings by a careful analysis of the evidence. These findings are, of course, not binding on this court, but they are entitled to great weight. (People v. Johnson, 61 Cal.2d 843, 845, 40 Cal.Rptr. 708, 395 P.2d 668; People v. Flanagan, 62 Cal.2d 63, 66, 41 Cal.Rptr. 85, 396 P.2d 389.)
After a review of the entire record, we are convinced that the findings of the referee as to a request or promise to appeal are not only substantially supported, but correctly interpret the evidence. This is not a simple case of the petitioner testifying that a request to appeal and a promise to appeal were made, and the trial attorney testifying that they were not, in which event liberal rules of construction favoring the allowance of an appeal might weigh the scales in favor of petitioner, but is a case where part of ...
To continue reading
Request your trial
-
People v. Griggs
...200 Cal.App.2d 629, 634, 19 Cal.Rptr. 344; People v. McDonough, 198 Cal.App.2d 84, 86--87, 17 Cal.Rptr. 643; cf. In re Thornton, 64 Cal.2d 484, 50 Cal.Rptr. 556, 413 P.2d 156.) Petitioner's petition for Coram nobis of August 24 specifically stated that it was being filed 'in direct pursuanc......
-
People v. Acosta
...the right to appeal (e.g., Prople v. Davis, 62 Cal.2d 806, 808, 44 Cal.Rptr. 441, 402 P.2d 129; see also In re Thornton, 64 Cal.2d 484, 485--486, 50 Cal.Rptr. 556, 413 P.2d 156 (semble)). A defendant who has suffered prior convictions and has appealed these convictions would bear a heavy bu......
-
People v. Chapman, Cr. 13769
...appointing a referee to take evidence. When the referee acts for us he is as bound by the duty as we are. In In re Thornton, 64 Cal.2d 484, 485--486, 50 Cal.Rptr. 556, 413 P.2d 156, we stated that in the simple case where a petitioner testifies that he requested an appeal and where the tria......
-
Holt v. Kelly
...interpret the evidence. (See In re Mitchell (1968) 68 Cal.2d 258, 262-263, 65 Cal.Rptr. 897, 437 P.2d 289; In re Thornton (1966) 64 Cal.2d 484, 485, 50 Cal.Rptr. 556, 413 P.2d 156; In re Allen (1956) 47 Cal.2d 55, 57, 301 P.2d II On January 2, 1974, in response to a Humboldt newspaper adver......