I dissent.
The majority unhesitatingly recites the well established rule that wherever possible doubts must be resolved in favor of the petitioner for rule 31(a) relief. It just as unhesitatingly abandons it in favor of the find*226ings of a referee who clearly neglected to apply the rule liberally to grant relief. I must point out that the referee is every bit as bound to approach rule 31(a) claims with a liberal eye as this court is. Where, as here, he fails to do so, we must reject his findings.
The reason for liberal application of the remedial provisions of rule 31(a) should be apparent. The 10-day period for notice of appeal is short, the right to appeal one’s conviction is most critical and precious and the defendant, who is often in the process of being transferred to a prison during the 10-day period, is not in a position to supervise his attorney’s pursuit of his rights. The burden on the state in waiving the 10-day limit is relatively slight—a petitioner is not granted a new trial but merely a belated opportunity to exercise his right to test the legality of his conviction in an appellate court. The interest of the state that justice be done in criminal cases reinforces a defendant’s claim that his appeal be considered on the merits. (E.g., People v. Casillas, 61 Cal.2d 344, 346 [38 Cal.Rptr. 721, 392 P.2d 521].)
These considerations require that doubts be resolved in favor of the petitioner for rule 31(a) relief. We cannot escape the duty to apply this liberal principle by appointing a referee to take evidence. When the referee acts for us he is as bound by the duty as we are.
In In re Thornton, 64 Cal.2d 484, 485-486 [50 Cal.Rptr. 556, 413 P.2d 156], we stated that in the simple case where a petitioner testifies that he requested an appeal and where the trial attorney testifies that he did not, the liberal rules of construction favoring the allowance of an appeal might weigh the scales in favor of the petitioner. (See also People v. Sanchez, 1 Cal.3d 496, 501 [82 Cal.Rptr. 634, 462 P.2d 386].)
This case is stronger than that hypothesized in Thornton. Petitioner finds himself in the most difficult of situations. None of the persons present in court—the public defender, the prosecutor, the judge nor the reporter— have any independent recollection of what occurred at his judgment and sentencing. Nor is this surprising since his offense was common, and his sentencing routine and one of many that morning. His entire sentencing consumed only two pages of transcript.
Petitioner’s file with the public defender’s office has long since been destroyed or lost. His attorney testified that he did not believe petitioner had asked him to appeal, on the rather dubious ground that if he had, the attorney would have done something about it or it would have “hung” on his mind. While we do not doubt for a moment the public defender’s diligence, he is, as we all are (particularly if we are as busy as the typical public *227defender) prone to an occasional oversight or memory lapse. The lack of recollection of the public defender, which of necessity must be considered as weaker than an unequivocal denial, cannot furnish a basis for refusing to resolve doubts in favor of the petitioner.
The evidence with respect to the reporter, the prosecuting attorney, and the judge do not even cast doubt on petitioner’s claim for relief. It is unlikely that a court reporter would record a statement addressed by a client to his attorney “in a normal tone of voice.” The prosecutor also would not be likely, as the prosecutor himself conceded, to remember that a defendant expressed a desire to appeal unless he made an issue of it. The judge would have ordered a notice of appeal filed if petitioner had stated his desire for an appeal in open court, but petitioner testified that he addressed his request to his attorney. Contrary to the majority’s conclusion, it is unlikely that any of these parties would have heard or attended to petitioner’s remark, or, if they had heard, would have remembered it.
In contrast, petitioner’s contention, based on his independent recollection, is not improbable nor directly contradicted.1 Moreover, petitioner’s story is supported by the testimony of Doris Blunk and Sheila Mortham that they each visited him immediately after sentencing and he told them he was fighting the conviction.
I am satisfied that under the settled rule we must resolve any doubts in favor of petitioner. It borders on absurdity for this court to adopt and repeatedly reiterate a rule requiring resolution of doubts in favor of a petitioner and then abandon it when faced with precisely the kind of case where its application makes a difference.
Nor is there such unexplained delay as would constitute waiver or estoppel. The four-month period between sentencing and petitioner’s first *228inquiry about his appeal is a reasonable time lapse for one who believes' that his appeal is being pursued by his attorney. (See, e.g., People v. Madrid, 62 Cal.2d 602, 605 [43 Cal.Rptr. 638, 400 P.2d 750] (five-month lapse); People v. Curry, 62 Cal.2d 207, 212 [42 Cal.Rptr. 17, 397 P.2d 1009] (10-month lapse); People v. Johnson 61 Cal.2d 843, 844-845 [40 Cal.Rptr. 708, 395 P.2d 668] (seven-month lapse).) Once petitioner became aware that no' appeal or notice of appeal had been filed, he pursued his relief with dispatch.2
The toll time takes on the memories of busy officers of the court should not be permitted to stand in the way when a defendant presents a credible and otherwise uncontradicted claim for relief from the 10-day limit on filing notices of appeal. In view of the importance of the right to appeal, the liberal policy in favor of permitting late filing, and the rule that reasonable doubt should be resolved in favor of the petitioner, I would reject the findings of the referee and grant the petition for rule 31(a) relief.
I do not believe that the discrepancy between petitioner’s statement in his petition that he made his appeal request in open court and his testimony at the hearing that he made his request in a normal voice to his attorney constitutes a deliberate falsehood or even such a discrepancy as to cast doubt upon petitioner’s version of events. (Contrast In re Thornton, supra, 64 Cal.2d 484, denying relief where parts of petitioner’s testimony were demonstrably false and other parts inconsistent.) Petitioner’s explanation that he did not write the petition but only stated what he remembered to the library clerk who then wrote it for him adequately accounts for the variation. The two versions are not fundamentally dissimilar. A statement in open court is only distinguishable from the statement in his normal voice in that it was addressed to his attorney rather than the judge. In other respects there was no difference. He was standing, facing the judge, and court was in session. The district attorney, reporter, and judge were all within earshot. Such a set of circumstances could easily be translated into “open court” by the clerk. Moreover, the legal impact of a private request for appeal to his attorney is identical to such a statement in open court, namely, it entitles him to rule 31(a) relief absent waiver or estoppel.
Petitioner mailed his notice of appeal the day he received the letter from the clerk of the Court of Appeal informing him no appeal was pending and his petition for rule 31(a) relief a day or two after receiving word that the notice would not be filed. The Attorney General suggests that petitioner was able to be so prompt because he knew he had no appeal notice filed and had prepared the papers in advance for the purpose of obtaining rule 31(a) relief. No reason appears in the record to draw such a sinister conclusion. The notice of appeal is a short form document which was prepared for the petitioner by an inmate-clerk of the law library. The petition for rule 31(a) relief, a two and one-half page document, was also prepared for petitioner by the clerk.