Opinion
Hearing Granted by Supreme Court Oct. 15, 1934.
Petition by Pedro Gonzales against the Superior Court in and for Los Angeles County and another, for a writ of mandate to compel respondents to take jurisdiction of petitioner’s motion to be relieved from default on appeal for failure to file application mentioning grounds of appeal and designated portions of transcript required.
Peremptory writ ordered.
COUNSEL
F. Paul Hornaday and H. Huntington, both of Los Angeles, for petitioner.
Everett W. Mattoon, Co. Counsel, S. V. O. Prichard, Deputy Co. Counsel, and Beach Vasey, all of Los Angeles, for respondents.
OPINION
STEPHENS, Presiding Justice.
This is a petition for the issuance of the writ of mandate in the following circumstances: Petitioner was convicted of a felony and sentence was pronounced. Within due time and acting under section 1239 of the Penal Code he filed his notice of appeal. He failed, however, to conform to the italicized part of the following requirement of section 7 of rule 2, Rules of the Supreme Court and of the District Courts of Appeal: "* * * The appellant must, within five days after giving notice of the appeal, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which the appellant relies, and designate what portions of the phonographic reporter’s notes it will be necessary to have transcribed to fairly present the points relied upon ." He did, however, in due time request a transcript of all of the proceedings had in the case, and the same was duly made and is now on file in the appeal of the cause. It will be seen that the whole case was brought up in the appeal, and that the only defect was the failure to mention the grounds of appeal and to designate the portions of the transcript required, although petitioner did request and did receive the full transcript. Thereafter it appears that petitioner discovered the error and petitioned the trial court to be allowed to show, pursuant to section 473 of the Code of Civil Procedure, that the omission was due to clerical error, inadvertence, and excusable neglect. The motion came on for hearing and the court ruled that it was without jurisdiction to entertain it. Upon this state of fact we issued the alternative writ of mandate herein. Respondents demurred to the petition on the ground that no cause for a writ had been therein stated and stipulated that the whole question presented by the petition should be considered as being before us for decision without a formal return.
The whole question is: Does section 473 of the Code of Civil Procedure apply to the case? If it does, this court should issue its peremptory writ commanding the respondent court to entertain the motion and to decide it upon its merits. There are many cases wherein motions were made and granted to dismiss the appeal in circumstances similar to the instant case. They are authority for the point that in such circumstances a motion made in the appellate court to dismiss must be granted. But this, as has been pointed out, is not the question presently before us. Of course, if petitioner’s default is relieved under section 473 by the trial court, no cause for dismissal would remain.
It may be mentioned in the approach to our problem that the law contemplates the right of review of felony cases and abhors its deprivation to an individual through a technical oversight of his counsel, in whom he has reason to rely for the reason that the latter is a duly admitted and licensed attorney through the high dignity of the state. On the other hand, there must be enforceable rules of procedure. The people, through their legislative deputation, have enacted section 1239 of the Penal Code, and by it have declared that upon its provisions being conformed to an appeal has been taken. It is clear that the real "dead line" as to time of appeal is contained in this section, and that in the interests of certainty it is beyond the power of any court to extend it. People v. Lewis, 219 Cal. 410, 27 P.2d 73. But notwithstanding the appeal in the instant case, it is claimed by respondents that it is irremedially impotent because of the failure to follow a rule of court within a specified time, as to certain details designed to assist in the consideration of the appeal; and this notwithstanding the claim by petitioner that the failure arose from some excusable mishap. Here there is no question of intention to appeal or to perfect the appeal, and the fateful question confronts us: Shall this incidental excusable omission on the part of the accused’s lawyer deprive the accused of his right of appeal? The beneficent purpose of section 473 of the Code of Civil Procedure would seem to be of far greater import in criminal matters than in civil matters, and the claim of respondents that this remedial section is not applicable to criminal cases is not borne out in principle or in authority.
In People v. Soto, 8 Cal.App. 322, 96 P. 913, 915, where the time had expired to present defendant’s draft of his bill of exceptions for settlement under the statutory requirement of section 1174 of the Penal Code, the trial court relieved him from his default under the principles provided for by section 473 of the Code of Civil Procedure, and this met with approval in both the main and concurring opinions on appeal. The alternative writ of prohibition issued against the trial judge’s proceeding to settle the bill. The main opinion closes with the following paragraph: "We are asked to presume that the court will proceed to settle the bill, even though the making of a formal order of relief under section 473 be first required, without making this prerequisite order. We cannot assume that the court will do this, for the purpose of prohibiting it from settling the bill. Rather must we assume that it will take such action on the application for relief as will make it competent for it to settle the bill without error, and, if necessary, make its formal order granting relief under section 473 before settling the bill." This case is commented upon in People v. Everett, 8 Cal.App. 430, 97 P. 175. In the case of People v. Southern, 118 Cal. 359, 50 P. 545, a criminal case, the use of section 473, Code of Civil Procedure, to correct a mistake in a bill of exceptions was approved.
We see no reason why the provisions of section 473 of the Code of Civil Procedure should not be available to petitioner herein.
The peremptory writ of mandate is ordered to issue commanding respondent superior court to take jurisdiction of petitioner’s motion to be relieved from the default hereir, detailed and to hear and determine the same upon its merits.
We concur: CRAIG, J.; DESMOND, J.