In re J.S.
Filed 12/22/09 In re J.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.S., On Habeas Corpus. | F058203 (Tulare Sup. Ct. No. JJD061933) OPINION |
THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Michael Sheltzer, County Public Defender, Lisa Bertolino and Patricia A. Stanley, Deputy Public Defenders, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Respondent.
-ooOoo-
On August 10, 2009, petitioner filed in this court a petition for writ of habeas corpus that seeks permission to file a belated appeal in Tulare County Superior Court case number JJD061933. We believe petitioner has made out an appropriate case for relief.
DISCUSSION
Judgment is rendered at the time it is orally pronounced. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Cal. Rules of Court, rule 8.308(a).) A criminal defendant has the burden of timely filing a notice of appeal, but the burden may be delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) However, this court is vested with discretion to grant a petitioner relief from default in timely filing a notice of appeal as required under California Rules of Court, rule 8.308(a).
There has developed a judicial policy that this courts power to grant relief from default in these instances be liberally exercised so that in proper cases appeal rights will not be forfeited on technical grounds. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see also In re Benoit (1973) 10 Cal.3d 72, 89.) When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant has relied upon the promise of trial counsel to timely file the notice on defendants behalf. (In re Benoit, supra, 10 Cal.3d at pp. 86-87.) The doctrine protects defendants who have been lulled into a false sense of security by trial counsels promise. (Id. at p. 87.) In addition, appointed counsel in the trial court has a statutorily imposed duty to execute and file a timely notice of appeal where arguably meritorious grounds exist for reversal or modification of the judgment. (Pen. Code, 1240.1, subd. (b).)
In the present case, petitioner was just a few months shy of 16 years of age when his disposition hearing was held in Tulare County Superior Court case number JJD061933. After being advised of his appellate rights, the minor asked his appointed counsel to file a notice of appeal on his behalf. Counsel assured him she would do so.
Defense counsel timely prepared the appropriate papers in the Tulare County Public Defenders Office and assumed that it had been filed with the court clerk. But for some unknown reason, the notice of appeal was not timely filed. Counsel did not discover that omission until July 24, 2009, after roughly one year had passed.
Defense counsel filed this petition for a writ of habeas corpus on August 10, 2009, that seeks permission to file a belated appeal. Petitioners attorney concedes petitioner was advised of his appellate rights.
The Attorney General believes the petition ought to be denied discretionarily and without prejudice because the application was not presented to the superior court in the first instance.
Alternatively, the Attorney General notes that a defendant who has been advised of his/her appellate rights must be diligent in ensuring they are exercised. (In re Benoit, supra, 10 Cal.3d at pp. 86-87.) Yet, in his opinion, there is nothing before this court to show petitioner was diligent in seeing that his attorney discharged the responsibility of filing the notice of appeal. As such, the Attorney General believes petitioners request for relief ought to be denied on its merits.
Petitioner is not required to present this issue to the superior court in the first instance.
As for the merits, this court notes the petition lacks a declaration for petitioner. But even without it, we are left with the following uncontroverted facts. Petitioner was not even 16 at the time of his disposition hearing. He asked trial counsel to file the notice of appeal on his behalf and counsel clearly let him down. The preference for deciding cases on their merits tips the balance ever so slightly in favor of granting petitioner relief and allowing him to file a belated notice of appeal.
DISPOSITION
Petitioner is directed to cause a notice of appeal to be filed on or before January 21, 2010, in Tulare County Superior Court action No. JJD061933.
Let a petition for writ of habeas corpus issue directing the Clerk of the Tulare County Superior Court, to file the notice if it is filed on or before that deadline, to treat it as being timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court.
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* Before Vartabedian, Acting P.J., Gomes, J. and Kane, J.
