I dissent.
This court appointed an able and experienced referee, Judge Ross A. Carkeet of the Superior Court of Tuolumne County. He took testimony, examined witnesses, reached considered conclusions on four specific questions of fact submitted to him, prepared a thoughtful report and proposed findings of fact. For reasons I am unable to comprehend, the majority of this court reject his report and make their own determination on disputed facts.
Four questions were submitted to the referee. His report forthrightly answered each query.
The first issue considered by the referee was: “Within 10 days after rendition of judgment, what, if anything, did petitioner state in regard to an appeal to the attorney who represented him at his trial?” The attorney testified under oath that the petitioner “was not sure as to whether or not he wanted to appeal, and that he had not made up his mind as to whether he wanted to file the notice of appeal in view of the fact that he would be serving dead time. I advised him at that time that if he did want to file the appeal, that he must file the notice of appeal within 10 days from that date.” The petitioner himself testified on that subject that he told the attorney to file a notice of appeal “and then I changed it and said no, I wasn’t decided about it then.” He further conceded that thereafter he did not rely upon his attorney to file the notice of appeal.
The second issue framed was this: “Within this 10-day period, what, if anything, did the attorney say or do in regard to an appeal?” The record is clear that the attorney advised petitioner a notice of appeal must be filed within 10 days, that petitioner indicated he had not made up his mind as to whether he would appeal, and that under these circumstances the attorney had completed his task as appointed counsel and was required to do nothing further. 1
The third query was: “Within the 10-day period, what efforts, if any, did petitioner make to mail a notice of appeal?”. While the petitioner asserted that he made efforts to file an appeal, the county jail records reveal no legal documents deposited for mailing by the petitioner during June or July 1967. There is a record for a notice of appeal sent out by the petitioner on February 10, 1967, in connection with another case in which he is *189involved. The referee found that “petitioner was familiar with the mailing procedures of the county jail and knew from his previous experience of February 10, 1967 that if he mailed a notice of appeal he would be required to sign a record of inmate’s legal document for such mailing in June of 1967. Admittedly he signed none and there is no record of such documentation ever having gone through the mail channels of the county jail.” The referee concluded “that the testimony of petitioner is a fabrication and it is disbelieved by the referee who finds that petitioner did not mail a timely notice of appeal within the 10-day period following judgment, and in fact made no efforts to file or mail a notice of appeal for filing within said 10-day period.”
On the fourth and final issue the referee found that “upon the foregoing evidentiary features of this case it seems clear to me that there was neither a request by petitioner to appeal, a promise on the part of his trial attorney to appeal, nor an ineffectual effort on the part of petitioner to appeal during the critical 10-day period. Petitioner’s plea for relief therefore lacks substance, and I find that within 10 days after rendition of judgment petitioner made no statement in regard to an appeal to the attorney who represented him at the trial indicating to the attorney his desire to appeal.”
The majority seem disturbed at petitioner’s fear of “dead time” and state it was “an erroneous view of the law” which should have been corrected by counsel. I respectfully suggest that it was not necessarily an erroneous view requiring correction by counsel, and that the petitioner was well alerted to the law and,its possibilities. Section 2900 of the Penal Code provides that the “term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant into the custody of the Director of Corrections____” Thus if the petitioner were to remain in the county jail to consult with and assist his counsel during preparation of an appeal, he would receive no credit therefor on his sentence. It would indeed be “dead time.” Having suffered a previous conviction, from which he was then appealing, this petitioner was neither naive nor. uninitiated and was well aware of the circumstances involved in sentences and appeals.
Since no evidence has been presented to this court more persuasive than the findings and recommendation of the referee, I would adopt his views and deny the relief sought.
McComb, J., and Burke, J., concurred.
Respondent’s petition for a rehearing was denied December 10, 1969. McComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.