People v. Rodriguez

PETERS, J.

I dissent.

The referee found that within 10 days after rendition of judgment “petitioner became aware of his right to appeal from another prisoner at Vacaville, but was not aware of the 10-day requirement for filing notice of appeal,” that his ignorance was not “the reason petitioner did not file a timely appeal,” that he “asked a prison counselor for papers with which to prosecute an appeal,” that petitioner testified that he “was told by the counselor not to appeal,” that this “was the reason given for not prosecuting an appeal at that time,” and that shortly afterwards he was sent from Vacaville to Jamestown.

The referee also found that grounds for finding no estoppel or waiver of rights would be the “educational and language difficulties of petitioner which necessitated a complete reliance upon advice and assistance of other prisoners who seemed unable to communicate with petitioner as evidenced by the letters and petitions filed herein.”

I believe that we should adopt the findings of the referee and that those findings warrant a belated appeal.

The majority also purport to accept the findings of the referee but they fail to give effect to the crucial finding. The majority recognize that petitioner asked a prison counselor for papers to appeal and that the referee found that the reason petitioner did not appeal was “that he was told not to appeal by his prison counselor.” But then the majority add: “There was no showing, as in People v. Slobodion (1947) 30 Cal.2d 362 [181 P.2d 868], that he was prevented by a prison official from filing an appeal. He was given advice and he decided to take it.” (Ante, p. 78.)

Contrary to the majority opinion, I believe that the evidence and findings show that for all practical purposes petitioner was prevented by a prison official from filing an appeal within contemplation of the principle enunciated in Slobodion.

Rule 31(a) of the California Rules of Court, which requires that a notice of appeal in a criminal case be filed within 10 days of rendition of judgment, empowers appellate courts to grant relief in proper cases. The power is to be exercised liberally to protect the right to appeal so that appeals may be considered on their merits, and so that forfeitures of substantial rights on technical grounds may be avoided. (E.g., People v. Bailey, 1 Cal.3d 180, 185 [81 Cal.Rptr. 774, 460 P.2d 974]; People v. Acosta, 71 Cal.2d 683, 685 [78 Cal.Rptr. 864, 456 P.2d 136]; People v. Casillas, 61 Cal.2d 344, 345-346 [38 Cal.Rptr. 721, 392 P.2d 521].)

Absent waiver or estoppel, a criminal defendant is entitled to relief from his default in failing to file a timely notice of appeal if his default was caused by ignorance of the right to appeal or of the 10-day period within which a notice of appeal must be filed. (People v. Sanchez, 1 Cal.3d 496, 500-501 [82 Cal.Rptr. 634, 462 P.2d 386]; People v. Acosta, supra, 71 Cal.2d 683, 687-688.)

Petitioner was unaware of the 10-day limitation on the time to appeal, and under the above authorities we must hold that the possible 16-day delay between judgment and the time he went to the prison counselor is excused.¹

Any further delay was based, not on his ignorance of the time to file an appeal, but on the advice of the prison counselor. However, his reliance on the advice of the prison counselor furnishes no basis to deny him a belated appeal.

Long prior to the adoption of the provision in rule 31(a) granting appellate courts power to relieve a defendant from failure to file a timely notice of appeal, and at a time when a timely notice of appeal was considered jurisdictional, this court considered the problem of interference with the exercise of the right of appeal by prison administrators. In People v. Slobodion, supra, 30 Cal.2d 362, 366, we recognized that a prisoner who desires to appeal in propria persona is “wholly dependent on the prison employees for effecting the actual filing of his notice of appeal within the prescribed time.” We held that where the prisoner had delivered the notice to a prison official within the 10-day period and the officials had failed to see that it was delivered to the clerk of the court, the petitioner is entitled to a belated appeal.

The principle of Slobodion is that, when prison authorities interfere with the exercise of the right of appeal, relief should be granted. No other rule is appropriate in the light of the handicaps faced by an incarcerated person seeking to appeal. And certainly the rule is compelled by the provision of rule 31(a) adopted subsequent to Slobodion which authorizes appellate courts to liberally grant belated appeals so that they may be considered on their merits and forfeitures of substantial rights on technical grounds may be avoided.

We are not here called upon to decide whether the prison counselor had a duty to supply appeal papers when requested by an inmate. The counselor did more than refuse to supply the papers. He told petitioner, an inmate with little education and limited use of the English language, not to appeal. Had the counselor merely refused to supply a notice of appeal, petitioner might have obtained a notice from other inmates. But the advice of the counselor foreclosed this.

It is not the counselor’s business to persuade defendants not to appeal or give legal advice, and a prisoner about to commence his term in prison and attempting to adjust to prison life is in no position to exercise an independent judgment and reject the advice of his prison counselor, who will in all probability be making recommendations as to the placement of the defendant in our prison system.

In advising petitioner not to appeal, the counselor went beyond any right or privilege he had and interfered with and prevented petitioner’s right to appeal. Such interference warrants relief under the Slobodion principle. For this court to suggest that petitioner merely received some casual advice and voluntarily decided to take it reveals a lack of sophistication and of understanding of the harsh realities of prison life. In an analogous situation, where a probation officer will make a recommendation to a trial judge prior to sentencing, we have recognized the realities of the situation and held that statements made by the defendant to the officer are not voluntary and are inadmissible in any retrial. (People v. Harrington, 2 Cal 3d 991, 999 [88 Cal.Rptr. 161, 471 P.2d 961]; People v. Quinn, 61 Cal.2d 551, 554 [39 Cal.Rptr. 393, 393 P.2d 705].) We should also recognize the realities of the situation confronted by petitioner and hold that a decision not to appeal made on the basis of “advice” of a prison counselor, whose recommendation may gravely affect the prisoner’s life, is also involuntary.²

I would grant the petition for relief under rule 31(a).

Tobriner, J., concurred.

1 Petitioner was sentenced on November 14, 1968. The referee states that it is not clear that he went to the prison counselor for papers to appeal within 10 days thereafter but that he probably went in late November 1968.

2 It will be recalled that petitioner sought to appeal while he was at Vacaville shortly after sentencing and before his assignment to Jamestown. The position of a correctional counselor is described as follows: “Under general supervision, to assemble, organize, analyze, and record information necessary for classification and parole planning for prison inmates; to interview and counsel inmates and assist with their adjustment and plans for rehabilitation in a correctional setting; and to do other work as required. . . . [H] . . . Employees in this series are usually assigned either to a reception guidance center or to a State correctional facility. Reception guidance centers prepare an evaluation of an inmate and make recommendations for his subsequent classification, assignment, and treatment in a correctional setting.” (Italics added; Cal. State Pers. Bd., Specifications, Correctional Counselor I, II, III, Schematic Codes XS20; XS30; XS40.)