Acosta

I dissent. I believe that the rule of People v. Hatten, 64 Cal.2d 224 [ 49 Cal.Rptr. 373 , 411 P.2d 101 ], *691 should have been upheld and applied in this case. Petitioner was represented by competent counsel who, the referee found, advised petitioner of his appeal rights before and within the 10-day period. The referee found further that petitioner did not request counsel to file an appeal but that because of his emotional state, the language barrier and other circumstances, petitioner was not aware of his right to appeal. I submit that lack of awareness of technical rules of law and procedure is common among nonprofessional litigants. The courts appoint counsel for them to protect their rights and in turn must rely on counsel to represent them properly. Absent a showing of lack of proper representation relief should not be grántéd.

If understanding and awareness on the part of a defendant are to be the test it will prove wholly impractical if not impossible to apply. For example, the referee found here that even after the hearing that he conducted the petitioner does not fully understand the meaning of an appeal. Had the trial judge followed the federal practice and informed…

Petitioner seeks an order permitting him to file a late.notice of appeal pursuant to rule 31(a) of the California Rules of Court. , Rule 31(a) requires that notice of appeal in a criminal case be filed within 10 days after rendition of judgment but empowers appellate courts to grant relief from default in proper cases. This power is to be liberally exercised to protect the right to appeal. (People v. Camarillo, 66 Cal.2d 455, 456 [ 58 Cal.Rptr. 112 , 426 P.2d 512 ]; People v. Buck, 65 Cal.2d 138, 139 [ 52 Cal.Rptr. 585 , 416 P.2d 817 ]; People v. Casillas, 61 Cal.2d 344, 345-346 [ 38 Cal.Rptr. 721 , 392 P.2d 521 ]; cf. In re Parker, 68 Cal.2d 756, 760 [ 69 Cal.Rptr. 65 , 441 P.2d 905 ].) “The policy of appellate courts ... is to hear appeals on the merits and to avoid, where possible, forfeitures of substantial rights on technical grounds. The interest of the state that justice be done in criminal cases reinforces'an appellant’s claim that his appeal be considered on the merits.” (People v. Casillas, supra, at p. 346 .) Petitioner has presented a proper case for relief.

In 1966, petitioner was charged with four counts of first degree murder (Pen. Code, §§ 187-189). He-pleaded not…