# In Re Benoit

> California Supreme Court · September 24, 1973 · 10 Cal. 3d 72

URL: https://www.frixlaw.com/law-library/cases/9633138

## Case

- **Full name:** In Re RAY EDWARD BENOIT on Habeas Corpus; In Re RICHARD WYCKOFF on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** September 24, 1973
- **Citations:** 10 Cal. 3d 72; 109 Cal. Rptr. 785; 514 P.2d 97; 1973 Cal. LEXIS 143
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Sullivan, Clark
- **Cited by:** 144 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633138

## Opinion text

CLARK, J.
I dissent. The majority’s discussion of the cases in which the *90 jurisdictional doctrine has been “judicially reconciled and symbiotically accommodated” with the fiction of constructive filing fails to recognize that the underlying principle of reconciliation and accommodation is estoppel, a principle inapplicable to the cases now before us.
As early as 1869 this court held in a civil case that time requirements for filing a notice of appeal cannot be waived by the adverse party’s failure to raise the issue of late filing in a motion to dismiss because timely filing “goes to the jurisdiction of the court.” (Fairchild v. Daten (1869) 38 Cal. 286 .)
In People v. Walker (1901) 132 Cal. 137, 138 [ 64 P. 133 ], the defendant contended “the same conclusion [that timely filing of the notice of appeal is jurisdictional] does not follow in criminal cases.” Finding “no ground upon which a distinction in this respect can be made between civil and criminal cases,” we held the purported appeal could not be considered because it had been filed after expiration of the statutory period. 1 (Id. at p. 139.)
We reiterated this principle in People v. Lewis (1933) 219 Cal. 410, 413 [ 27 P.2d 73 ]: “The requirements as to the time for filing notices of appeal are mandatory and jurisdictional in both civil and criminal actions.”
It was no doubt because we had so recently and so intransigently held “jurisdiction [cannot] be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver” (Estate of Hanley (1943) 23 Cal.2d 120, 123 [ 142 P.2d 423 , 149 A.L.R. 1250 ]) that when this court did create an estoppel exception to the jurdisdictional doctrine in People v. Slobodion (1947) 30 Cal.2d 362 [ 181 P.2d 868 ], we did so through the fiction of constructive filing. But such a “confirmed judicial habit of avoiding the application of a strictly worded rule by indulging in fiction . . . in order to approximate ‘justice’ ” 2 results in mischief when, as here, the fiction causes courts subsequently to lose sight of the reason why justice seemed to require avoidance of the rule in the landmark case.
The rationale underlying the fiction of constructive filing in Slobodion is that the state as prosecutor should be estopped from benefiting from the untimely filing caused by the state as jailer. This is transparently clear upon reading the case: “In short, the situation presents these considerations: The state by law imposed the conditions governing the taking of an appeal; appellant incarcerated in a state institution was forced to comply with the *91 state prison rules, which included the censoring of all communications of the inmates prior to mailing and which in the case of legal mail might require ‘one day or a week’ before clearance was had; and the notice in question failed to reach the ‘clerk of the superior court’ for actual filing within the prescribed time, not through any fault on the part of appellant but solely as the result of the negligence of the state’s employees. In such circumstances no other conclusion is tenable but that appellant, by placing his notice in the hands of the state’s employees for mailing six days prior to the final day allowed for its actual filing, met the time requirements governing his right of appeal insofar as it was possible for him to do so. Obviously, he was powerless to prevent any delay which might ensue after he delivered in prison his notice of appeal to the state employees for forwarding; any tardiness then occurring was attributable wholly to the state’s employees. It would be absurd to hold in a criminal case that the state may extend the right of appeal contingent upon timely pursuit thereof and then deny such fundamental right because the state’s employees were remiss in complying with the state’s law. Such a paradoxical result would have no legal justification, and so it must be said here that when appellant timely deposited his notice of appeal with the state’s employees as required by the state prison rules, such action constituted a constructive filing of the specified notice.” (People v. Slobodion, supra, at pp. 366-367 .)
The fiction of constructive filing should not be applied to these cases because the underlying justification for estoppel is not present. Here the state as jailer was not a party to, nor responsible for, the failure to file timely notices of appeal. Responsibility lies solely upon the petitioners and their counsel. Unlike Slobodion , it cannot be said the state here is benefiting from its own wrongdoing.
Both before and after Slobodion this court invoked the jurisdictional doctrine in denying relief from late filing of the notice of appeal where the defendant or his attorney was responsible for the tardiness.
In People v. Lewis, supra, 219 Cal. 410, the defendant contended his late filing should be excused because the attorney representing both men had inadvertently omitted defendant’s name from his codefendant’s timely notice of appeal. We held: “Where through inadvertence or mistake of a party or his attorney notice is not filed within the time limited by law, neither the trial court nor appellate court can afford relief thereafter by permitting filing of a tardy notice.” (Id. at p. 414.) Long after Slobodion we cited the holding in Lewis with approval in In re Del Campo (1961) 55 Cal.2d 816, 817 [ 13 Cal.Rptr. 192 , 361 P.2d 912 ],
*92 In People v. Riser (1956) 47 Cal.2d 594 [ 305 P.2d 18 ], the People moved to dismiss the appeal on the ground notice of appeal had not been filed within the required period. The cause of the delay was a breakdown in communication between defendant and counsel, according to an affidavit filed by counsel, a deputy public defender. Distinguishing Slobodion on the ground the state was not the cause of the delay, this court observed; “The state has no duty to see that every convicted prisoner perfects an appeal, nor is it responsible should the public defender fail to act. (See People v. Walsh, 129 Cal.App.2d 327, 328-329 [ 277 P.2d 73 ]; People v. Cox, 120 Cal.App.2d 246 [ 260 P.2d 1050 ].)” 3 (Id. at pp. 595-596.)
Lewis remained the law until it was “abrogated by the [1961] amendments to rule 31(a).” (People v. Casillas (1964) 61 Cal.2d 344, 346, fn. 2 [ 38 Cal.Rptr. 721 , 392 P.2d 521 ].) The provision in rule 31(a) empowering appellate courts to grant relief from failure to file a timely notice of appeal, added in 1961, was eliminated in 1972. Therefore, appellate courts no longer have jurisdiction to grant such relief.
Even if this court had jurisdiction to grant relief from failure to file a timely notice of appeal where delay is caused by defense counsel rather than the state, we should refuse to grant such relief, just as we deny relief where a guilty plea is entered in reliance on misrepresentations as to sentencing made by defense counsel rather than the state. “ ‘[P]urported misrepresentations of defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon’ (People v. Reeves (1966) 64 Cal.2d 766, 776 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ]), and they are certainly insufficient to have any binding effect on the trial court as to the sentence to be imposed. Such alleged misrepresentations cannot rise to the level of a valid plea bargain in the absence of at least apparent substantial corroboration by a responsible public official. (Cf., *93 People v. Gilbert (1944) 25 Cal.2d 422, 443 [ 154 P.2d 657 ]).” (People v. Ribero (1971) 4 Cal.3d 55, 61-62 [ 92 Cal.Rptr. 692 , 480 P.2d 308 ].)
The majority concedes: “[I]t is true that rule 250 places the responsibility for filing a notice of appeal upon the defendant. . . .” (Ante, p. 87.) A defendant who chooses to discharge this responsibility through counsel should be held liable for his counsel’s negligence.
Since this court does not have jurisdiction to grant the relief petitioners seek, and should not grant such relief even if it had jurisdiction, the petitions for writs of habeas corpus should be denied.
Respondent’s petition for a rehearing was denied October 24, 1973. Clark, J., was of the opinion that the petition should be granted.
In People v. Varnum (1879) 53 Cal. 630 , this court held an untimely appeal taken from an order denying a new trial in a criminal case “must be dismissed.”
3Corbin, Contracts (1960 ed.) section 561, page 279.
In People v. Cox (1953) 120 Cal.App.2d 246 [ 260 P.2d 1050 ], oral notice of appeal was given in open court but written notice of appeal was not filed in time. In an affidavit accompanying the written notice of appeal defendant explained he had been informed an appeal had been made by his attorney and thought the appeal had been handled properly. Counsel on appeal contended the failure of trial counsel to perfect the appeal brought the case under Slobodion . Distinguishing Slobodion , the Court of Appeal relied on Lewis for holding: “The courts have recognized no excuse for the late filing of a notice of appeal, whatever the hardship or apparent injustice involved.” ( 120 Cal.App.2d at p. 247 .)
In People v. Walsh (1954) 129 Cal.App.2d 327 [ 277 P.2d 73 ], an appeal from denial of a petition for a writ of coram nobis, the defendant claimed his failure to appeal his conviction should be excused because his trial counsel, an assistant public defender, assured him an appeal would be taken and gave oral notice of appeal but never filed written notice of appeal. Defendant contended he should not be charged with the neglect of the public defender, court-appointed counsel. The Court of Appeal found the case indistinguishable from People v. Cox, supra, and rejected his contention. ( 129 Cal.App.2d at p. 329 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633138. Public record. Not legal advice.