OPINION
Petitioner seeks an order permitting him to file a belated notice of appeal under California Rules of Court, rule 31(a).1
On December 18, 1967, petitioner was sentenced to the term prescribed by law upon a jury conviction of murder in the second degree. (Pen. Code, §§ 187, 189, 190.) He failed to file a notice of appeal within the period prescribed by rule 31(a), and first made application for relief from such failure 13 months later, on January 17, 1969.2 Petitioner then asserted, as reason for his failure to have filed a timely notice and failure to have sought earlier relief, that he had relied upon an alleged promise by trial counsel that he would pursue an appeal in petitioner's behalf. That application for relief was denied by the Court of Appeal on March 19, 1969, and in due course a petition for hearing was denied by this court.
Petitioner did not seek relief on his instant application until January 5, 1970, more than two years after sentencing. He asserts in such application, again as reason for his failure to have filed a timely notice and to have sought earlier relief, that his attorney had advised him to forego an appeal for the mistaken reason that the elapsed time during which such an appeal would be pending would be "dead time" and could not be counted against the term of petitioner's sentence. (See Pen. Code, §§ 2900, 2900.1.) Petitioner
concedes that at all pertinent times he was aware of his right of appeal and of the requirement that he file a notice of appeal within 10 days of judgment.
The Honorable Charles J. McGoldrick, Retired Judge of the Superior Court of Sonoma County, was appointed by order of this court as referee and directed to conduct an evidentiary hearing.
Evidence adduced at the hearing discloses that after the verdict but before the pronouncement of judgment petitioner and counsel discussed an appeal, as the result of which petitioner asked counsel to file a timely notice thereof. The attorney recalled, "I told him that I would file . . . for him if he insisted, but I then proceeded to attempt to talk him out of it. . . . (¶) I said, `You should start serving your term and get the seven years over with as rapidly as possible; if we file an appeal for you, the case will be tied up in the Appellate Court for nine months to a year, and then the best that you can hope for is a reversal and sent back for retrial. . . . I don't expect you to be acquitted or to come out with a manslaughter verdict, and, therefore, you will be serving dead time during this year or year and a half period while the case is in Appellate Court and while the case is in retrial. . . ."3 Counsel also advised petitioner that although he thought significant trial error had been made and that a reversal on appeal was likely, he was of the opinion that petitioner would be no more successful on a retrial than on the initial trial of the cause, and recommended that petitioner abandon any plan for an appeal and begin serving his time immediately.
Petitioner testified that trial counsel had advised him in a manner which was consistent with counsel's testimony. He stated that he was led to believe that even if he successfully pursued an appeal he would again be convicted of murder in the second degree, and that he would receive no credit for the time served during the appeal. Because he had already served considerable "dead time" awaiting trial, he was persuaded not to appeal.
Following sentence, petitioner was transferred to the Reception Guidance Center at Vacaville, where he was placed in the maximum security wing. He testified that between January 4 and February 9, 1968, he was confined in psychiatric segregation with medication, a type of solitary confinement. Upon his transfer to San Quentin on February 9, petitioner was further confined to a maximum security unit for about five days of observation, and was then released to the general prison population.
Petitioner, according to his own testimony, became aware of his attorney's incorrect advice no later than April 1968, approximately nine months before he first sought to be relieved from the failure to have filed a timely notice of appeal.4 At this time petitioner was advised that he could seek relief grounded on the erroneous advice, and he discussed with other prison personnel arrangements for the preparation of the necessary application. For the next several months, until August 2, 1968, petitioner enjoyed the same freedom as in the case of other inmates in the general prison population, and apparently discussed but did not arrange for the preparation of an application for relief. Between August 2 and October 25, 1968, he was in segregation in the Adjustment Center for disciplinary reasons. Only for the first 29 days of such confinement was he denied an opportunity to pursue his legal remedies. Petitioner testified that inmates confined to the Adjustment Center are permitted to do legal work, may write letters and receive visitors, and may communicate with other prisoners in the center. Following his release to the general population on October 25, 1968, petitioner delayed approximately another three months (until January 17, 1969) before he filed an application for relief. After the denial of such application on March 19, 1969, he waited almost 10 additional months for a total elapsed period of approximately 21 months after he admittedly became aware of the attorney's error before he sought relief on the specific ground now asserted.
Contrary to petitioner's contentions there is no justification for his continuing delay grounded on his lack of training and education. Petitioner had attended school to the eighth grade, had done better than average work in some subjects, and had a learning level of 6.2. Claim is made also that he suffered from psychotic problems, but such problems had manifested themselves only at a date which was prior to the time he learned of his attorney's erroneous advice, and there is no evidence that these problems disabled him in any way after that date.
The referee found and concluded that petitioner had communicated to his attorney within the 10-day period his desire to appeal; that counsel stated that he would file a notice of appeal if petitioner insisted; that counsel erroneously advised petitioner that time elapsed pending such an appeal would be "dead time" and further stated that in his opinion petitioner would again be convicted of murder in the second degree on a retrial; that petitioner accepted counsel's advice and instructed him not to appeal; that petitioner "first became aware of his attorney's incorrect advice in April of 1968, and failed to take any action in relation thereto until December of 1968, and therefore the writ is not timely pursuant to rule 31(a)."
This court has consistently exercised liberality in granting relief, under rule 31(a), from the late filing of a notice of appeal. (People v. Acosta (1969) 71 Cal.2d 683, 688 [78 Cal.Rptr. 864, 456 P.2d 136]; People v. Tucker (1964) 61 Cal.2d 828, 832 [40 Cal.Rptr. 609, 395 P.2d 449].) (1)
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OPINION
Petitioner seeks an order permitting him to file a belated notice of appeal under California Rules of Court, rule 31(a).1
On December 18, 1967, petitioner was sentenced to the term prescribed by law upon a jury conviction of murder in the second degree. (Pen. Code, §§ 187, 189, 190.) He failed to file a notice of appeal within the period prescribed by rule 31(a), and first made application for relief from such failure 13 months later, on January 17, 1969.2 Petitioner then asserted, as reason for his failure to have filed a timely notice and failure to have sought earlier relief, that he had relied upon an alleged promise by trial counsel that he would pursue an appeal in petitioner's behalf. That application for relief was denied by the Court of Appeal on March 19, 1969, and in due course a petition for hearing was denied by this court.
Petitioner did not seek relief on his instant application until January 5, 1970, more than two years after sentencing. He asserts in such application, again as reason for his failure to have filed a timely notice and to have sought earlier relief, that his attorney had advised him to forego an appeal for the mistaken reason that the elapsed time during which such an appeal would be pending would be "dead time" and could not be counted against the term of petitioner's sentence. (See Pen. Code, §§ 2900, 2900.1.) Petitioner
concedes that at all pertinent times he was aware of his right of appeal and of the requirement that he file a notice of appeal within 10 days of judgment.
The Honorable Charles J. McGoldrick, Retired Judge of the Superior Court of Sonoma County, was appointed by order of this court as referee and directed to conduct an evidentiary hearing.
Evidence adduced at the hearing discloses that after the verdict but before the pronouncement of judgment petitioner and counsel discussed an appeal, as the result of which petitioner asked counsel to file a timely notice thereof. The attorney recalled, "I told him that I would file . . . for him if he insisted, but I then proceeded to attempt to talk him out of it. . . . (¶) I said, `You should start serving your term and get the seven years over with as rapidly as possible; if we file an appeal for you, the case will be tied up in the Appellate Court for nine months to a year, and then the best that you can hope for is a reversal and sent back for retrial. . . . I don't expect you to be acquitted or to come out with a manslaughter verdict, and, therefore, you will be serving dead time during this year or year and a half period while the case is in Appellate Court and while the case is in retrial. . . ."3 Counsel also advised petitioner that although he thought significant trial error had been made and that a reversal on appeal was likely, he was of the opinion that petitioner would be no more successful on a retrial than on the initial trial of the cause, and recommended that petitioner abandon any plan for an appeal and begin serving his time immediately.
Petitioner testified that trial counsel had advised him in a manner which was consistent with counsel's testimony. He stated that he was led to believe that even if he successfully pursued an appeal he would again be convicted of murder in the second degree, and that he would receive no credit for the time served during the appeal. Because he had already served considerable "dead time" awaiting trial, he was persuaded not to appeal.
Following sentence, petitioner was transferred to the Reception Guidance Center at Vacaville, where he was placed in the maximum security wing. He testified that between January 4 and February 9, 1968, he was confined in psychiatric segregation with medication, a type of solitary confinement. Upon his transfer to San Quentin on February 9, petitioner was further confined to a maximum security unit for about five days of observation, and was then released to the general prison population.
Petitioner, according to his own testimony, became aware of his attorney's incorrect advice no later than April 1968, approximately nine months before he first sought to be relieved from the failure to have filed a timely notice of appeal.4 At this time petitioner was advised that he could seek relief grounded on the erroneous advice, and he discussed with other prison personnel arrangements for the preparation of the necessary application. For the next several months, until August 2, 1968, petitioner enjoyed the same freedom as in the case of other inmates in the general prison population, and apparently discussed but did not arrange for the preparation of an application for relief. Between August 2 and October 25, 1968, he was in segregation in the Adjustment Center for disciplinary reasons. Only for the first 29 days of such confinement was he denied an opportunity to pursue his legal remedies. Petitioner testified that inmates confined to the Adjustment Center are permitted to do legal work, may write letters and receive visitors, and may communicate with other prisoners in the center. Following his release to the general population on October 25, 1968, petitioner delayed approximately another three months (until January 17, 1969) before he filed an application for relief. After the denial of such application on March 19, 1969, he waited almost 10 additional months for a total elapsed period of approximately 21 months after he admittedly became aware of the attorney's error before he sought relief on the specific ground now asserted.
Contrary to petitioner's contentions there is no justification for his continuing delay grounded on his lack of training and education. Petitioner had attended school to the eighth grade, had done better than average work in some subjects, and had a learning level of 6.2. Claim is made also that he suffered from psychotic problems, but such problems had manifested themselves only at a date which was prior to the time he learned of his attorney's erroneous advice, and there is no evidence that these problems disabled him in any way after that date.
The referee found and concluded that petitioner had communicated to his attorney within the 10-day period his desire to appeal; that counsel stated that he would file a notice of appeal if petitioner insisted; that counsel erroneously advised petitioner that time elapsed pending such an appeal would be "dead time" and further stated that in his opinion petitioner would again be convicted of murder in the second degree on a retrial; that petitioner accepted counsel's advice and instructed him not to appeal; that petitioner "first became aware of his attorney's incorrect advice in April of 1968, and failed to take any action in relation thereto until December of 1968, and therefore the writ is not timely pursuant to rule 31(a)."
This court has consistently exercised liberality in granting relief, under rule 31(a), from the late filing of a notice of appeal. (People v. Acosta (1969) 71 Cal.2d 683, 688 [78 Cal.Rptr. 864, 456 P.2d 136]; People v. Tucker (1964) 61 Cal.2d 828, 832 [40 Cal.Rptr. 609, 395 P.2d 449].) (1) Our pronouncements in this area have been tempered by the rule that the waiver of the right of appeal, as in the case of the waiver of any other statutory or constitutional right, can be made, if at all, only knowingly and intelligently. (In re Walker (1969)71 Cal.2d 54, 57 [77 Cal.Rptr. 16, 453 P.2d 456].) Most of the recent cases dealing with rule 31(a) relief, however, have been primarily concerned with the nature of those disabilities or circumstances which are deemed to impose an unreasonable burden in demanding strict compliance with the requirement that a notice of appeal be filed within 10 days of judgment. (2) There are now well established and recognized grounds for excusing compliance (see generally, People v. Acosta, supra, 71 Cal.2d 683, 687), including a misunderstanding induced by trial counsel that time served during an appeal would be "dead time" in tolling the term of a sentence. (People v. Bailey (1969) 1 Cal.3d 180, 187 [81 Cal.Rptr. 774, 460 P.2d 974].) There are not, however, so well formulated rules which deal with the question of a subsequent waiver of or an estoppel from asserting a right of appeal which might once have been revived pursuant to rule 31(a). This is the critical issue with which we are now confronted. Petitioner's failure to file a timely notice was excusable and he unquestionably became entitled, on the record presented, to rule 31(a) relief, based upon counsel's erroneous advice. (People v.Bailey, supra, 1 Cal.3d 180.) But the issue is not excuse from an initial failure for which there may be justification, but rather excuse from a second and continuing failure to seek timely relief. Excuse once established cannot be deemed a palliative for a continuing failure to act after the disability which justified the initial failure has been removed. (3)
Although it is well established that liberality is the keynote in excusing noncompliance (People v. Casillas (1964) 61 Cal.2d 344, 346 [38 Cal.Rptr. 721, 392 P.2d 521]), it should not be overlooked that the time limit provided by
rule 31(a) "may not be extended" (rule 45(c), Cal. Rules of Court), and is jurisdictional (People v. Lewis (1933)219 Cal. 410, 413-414 [27 P.2d 73]).
We have held generally "that any significant delay between sentencing and the filing of a petition for relief from a late filing under rule 31(a) must be reasonably explained or the doctrines of waiver and estoppel will be invoked to deny relief." (People v. Acosta, supra, 71 Cal.2d 683, 690.) Although significant delays between sentencing and the filing of a petition for relief have been justified, in each of such cases the delay has been deemed to have been reasonably explained for one reason or another. Thus in People v. Garcia (1965)63 Cal.2d 265 [46 Cal.Rptr. 324, 405 P.2d 148], a delay of almost a year was justified where the petitioner could "barely write" and read "with difficulty" and where, after being advised that no proper notice of appeal had been filed and that his remedy was to seek appellate court relief, the circumstances of his imprisonment precluded any earlier action than that taken by him. Such circumstances were his nine-month confinement to "the hole" because of an infraction of prison rules. When released from such confinement he "[a]lmost immediately" obtained the help of a knowledgeable inmate who assisted in obtaining information and documents, and "[s]hortly thereafter" the petitioner filed his application for relief. The application was filed approximately two months after Garcia's release from "the hole." It additionally appeared, in aid of the conclusion that Garcia had diligently pursued his remedy, that it was doubtful that he had understood the advice relative to the pursuit of his remedy until he was able to obtain the assistance of his fellow inmate following his release from "the hole." In that case the referee expressly found that the petitioner "`did not waive the right to a delayed appeal and that there is no reason for an estoppel.'" (63 Cal.2d at p. 268.)
Garcia, on the facts as recited therein, stands for the proposition that diligent action during a two-month periodfollowing the termination of a disability or disabilities which reasonably foreclosed any earlier action, precluded the invocation of a waiver of or an estoppel from asserting the right to rule 31(a) relief.
In other cases in which rule 31(a) relief has been granted the particular disabilities were deemed to justify inaction by the petitioner only while he had remained thus disabled. In People
v. Curry (1965) 62 Cal.2d 207 [42 Cal.Rptr. 17,397 P.2d 1009], an "emotionally and mentally upset" petitioner who "reasonably believed an appeal would be and had been taken" was held justified in delaying for 10 months before making inquiry of the court wherein he reasonably thought his appeal was pending. (62 Cal.2d at p. 212.) When advised that no appeal was pending he "immediately
filed for relief from the default." In People v. Madrid
(1965) 62 Cal.2d 602 [43 Cal.Rptr. 638, 400 P.2d 750], there was an excused five-month delay during which the petitioner was unaware that a promised appeal had not been prosecuted. InPeople v. Davis (1965) 62 Cal.2d 806 [44 Cal.Rptr. 441,402 P.2d 129], and in People v. Johnson (1964) 61 Cal.2d 843
[40 Cal.Rptr. 708, 395 P.2d 668], there were similar delays of seven months, and in People v. Rapp (1966) 64 Cal.2d 643
[51 Cal.Rptr. 247, 414 P.2d 375], the delay after promise of an appeal was of eight months' duration. In each of the foregoing cases, the petitioner immediately undertook to seek relief once the disability5 was removed, and in no case does it appear that this required as much as the two-month period approved inGarcia. In People v. Bailey, supra, 1 Cal.3d 180, it does not appear when the disability, in that case as in the present case a misapprehension as to "dead time" while an appeal was pending, was removed. It does appear that petitioner sought to enforce his right to appeal within four months of sentencing and proceeded with "due diligence" once the disability was removed ( 1 Cal. 3d at p. 187), but the issue critical in the instant case was not raised.
(4, 5) In addressing ourselves to the question whether petitioner in the present case proceeded diligently to protect his right of appeal after all disabilities precluding more timely action had been removed, we are first confronted with a record which shows an initial application for relief filed 13 months after sentencing, and a second and current application filed more than 2 years after sentencing. The separate grounds urged in the two applications appear to be inconsistent. Petitioner first alleged that he had failed to file a timely notice of appeal because he thought counsel was taking whatever action was necessary. In his current application, on the other hand, he claims that he had been persuaded by counsel to abandon the appeal and, accordingly, petitioner must be deemed to have been aware that counsel would not take the very action which petitioner initially claimed he waited for counsel to take. Petitioner contends in the instant proceedings that although he had relied in his initial application on the now abandoned allegation of an unfulfilled promise by his attorney, he had also raised in the earlier proceedings the contention that the failure to file a timely notice of appeal was induced by his attorney's advice relative to "dead time." Such claim is said to have been made in the petition for hearing filed in this court following the denial of the application by the Court of Appeal. That petition, filed more than 14 months after judgment, contained
the first reference relative to the attorney's erroneous advice. Even at that late date, however, petitioner still relied on counsel's claimed unfulfilled promise to file a timely notice. The "dead time" issue was urged only as an explanation forcounsel's failure to have kept the claimed promise. Petitioner asserted that counsel unilaterally elected not to pursue the appeal after his promise to do so because of his "erroneous and mistaken belief that subject would not be credited with time served should he win a reversal."6 At no point in the earlier proceedings did petitioner assert that he, petitioner, elected not to appeal because of the "dead time" misunderstanding.
It thus appears that petitioner did not make application for relief on the precise grounds on which he now relies, for more than 2 years after sentencing and approximately 21 months after he became aware of such ground for relief. However, without reaching the question whether considerations of waiver and estoppel in the instant circumstances should be measured against the period of time during which petitioner elected not to assert the specific circumstances which would have entitled him to relief, we think it manifest that this petitioner cannot prevail even when that period is measured against the time when he first sought to be relieved on grounds now recognized to have been asserted in bad faith.
We are compelled to the conclusion, on the entire record, that except for a one-month period during a total of at least nine months, and more likely eleven months, petitioner was under no disability which reasonably could have precluded an application for rule 31(a) relief. During this period he was a member of the general population of a large prison where, according to his own testimony, knowledgeable inmates were available to advise him and he was aware that no notice of appeal had been filed, that he would not risk "dead time" by appealing, and that it was incumbent upon him to make application for relief. Petitioner suffered no limitation significantly different in kind or degree from those suffered by inmates generally or which imposed an unreasonable burden upon him in proceeding forthwith to file the application for relief which he eventually filed no earlier than nine months later. Had he been as well advised and possessed of the same abilities on the day of his sentencing as he was on the day he was informed of his attorney's erroneous advice, he would have been required to have proceeded diligently in filing a notice of appeal
within 10 days if he was not to forego the right of appeal. With allowances for the fact of his prison environment and the requirement of preparing a more sophisticated document in seeking rule 31(a) relief, he should have exercised a like degree of diligence in the instant case.
We have heretofore approved in Garcia, in the case of an inmate in a state prison a two-month period for the preparation and presentation of an application for rule 31(a) relieffollowing the termination of disabilities which precluded an earlier filing. Neither the efficient administration of justice nor any legal compulsion requires more lenient treatment. In no event can we allow a would-be appellant an option as long as that sought in the instant case within which to act to revive a right of appeal first lost for failure to have filed a notice within a jurisdictional time limit.
The referee has expressly found in the instant case that the application was not timely made and that petitioner "is estopped or has waived his right to appeal." This finding is entitled to great weight, although we are not bound thereby. (People v.Acosta, supra, 71 Cal.2d 683, 687; People v. Garcia, supra,63 Cal.2d 265, 268.) However, the record compels the finding and our adoption thereof.
The order to show cause is discharged. Petitioner's application for relief under rule 31(a) and petition for writ of habeas corpus are denied.
McComb, J., Mosk, J., Burke, J., and Sullivan, J., concurred.