Flanagan

This is another in a series of eases involving the proper interpretation and application of rule 31(a) of the California Rules of Court. 1 Several cases have already been decided involving the general problem (People v. Casillas, 61 Cal.2d 344 [ 38 Cal.Rptr. 721 , 392 P.2d 521 ]; People v. Tucker, 61 Cal.2d 828 [ 40 Cal.Rptr. 609 , 395 P.2d 449 ] ; People v. Johnson, 61 Cal.2d 843 [ 40 Cal.Rptr. 708 , 395 P.2d 668 ]).

The facts of this case bring it within the rules announced in those cases.

Petitioner was sentenced for second degree murder on July 19,1963, after a trial without a jury. He was represented during the trial by attorney Bernard W. Minsky, who had been retained and partially compensated by the two sisters *65 of petitioner. No notice of appeal was filed within the 10-day period provided by rule 31(a). In September of 1963 petitioner first discovered that an appeal had not been filed and in October 1963 petitioner attempted to file a late notice of appeal. He now seeks permission to file that late notice under rule 31(a).

The referee appointed by this court to ascertain the facts, the Honorable Jordan L. Martinelli, Retired Judge of the Superior Court of the County…