Diehl

Petitioner seeks relief from his default in failing to file a notice of appeal in a criminal case within the 10-day period specified by rule 31(a) of the California Rules of Court. That rule provides for relief from default in a proper case. 1 It is now settled that the power conferred by that rule should be liberally exercised to avoid, if possible, the loss of the right to appeal. (People v. Casillas, 61 Cal.2d 344, 346 [ 38 Cal.Rptr. 721 , 392 P.2d 521 ] ; People v. Tucker, 61 Cal.2d 828, 831 [ 40 Cal.Rptr. 609 , 395 P.2d 449 ]; see also People v. Johnson, 61 Cal.2d 843, 844 [ 40 Cal.Rptr. 708 , 395 P.2d 668 ].) These cases have determined that when the trial attorney expressly agrees, within the 10-day period, to appeal, and does not do so, and the defendant is free of fault, relief should ordinarily be granted. The present case involves a somewhat different phase of the problem.

Defendant was tried before a jury in San Francisco, and convicted of manslaughter. His trial attorney was Milton Stern, Jr. The trial was hard fought. Several times during the trial the attorney, in defendant’s presence, or in the presence of defendant’s wife, stated that the deputy district attorney…