In re Speakes

Filed 10/23/06 In re Speakes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re ALLEN SPEAKES,

on Habeas Corpus.

A115363

(San Francisco County

Super. Ct. No. SC195127)

THE COURT:^*

By this petition for writ of habeas corpus, Allen Speakes, seeks a declaration that his notice of appeal in People v. Speakes (Super. Ct. S.F. City and County, 2006, No. SC 195127); (Court of Appeal No. A113668) was constructively, timely filed.

The parties are familiar with the factual and procedural history of the case, and we need not reiterate it here in detail. (People v. Garcia (2002) 97 Cal.App.4th 847.) Petitioner has established a prima facie case that he is incarcerated, that he requested trial counsel to file a notice of appeal, and that counsel prepared a notice, but inadvertently failed to file it timely. (Roe v. Flores-Ortega (2000) 528 U.S. 470; Strickland v. Washington (1984) 466 U.S. 668; In re Benoit (1973) 10 Cal.3d 72.) Counsel attempted to correct his error by requesting the court to recall petitioner’s sentence (Pen. Code, § 1170, subd. (d)). The trial court did so, and resentenced petitioner to the same term. Counsel thereafter filed a notice of appeal; however, as petitioner acknowledges, the resentencing did not resurrect the otherwise untimely appeal, notwithstanding the fact that the superior court filed his notice. (People v. Pritchett (1993) 20 Cal.App.4th 190.)^[1]

Respondent concedes that petitioner is entitled to the relief he seeks and waives issuance of an order to show cause. Respondent also waives oral argument and stipulates to the immediate issuance of the remittitur.^[2]

Therefore, the petition for writ of habeas corpus is granted to the extent that the notice of appeal dated April 24, 2006, and filed by the superior court on that date in People v. Speakes (Super. Ct. S.F. City and County, 2006, No. SC 195127), is deemed constructively, timely filed.

The clerk of this court is directed to file a copy of this opinion in People v. Speakes (No. A113668) and to serve it on all parties to that appeal.

This opinion is final for all purposes immediately upon filing, and the clerk of this court shall forthwith issue the remittitur. (See Ng v. Superior Court (1992) 4 Cal.4th 29, 34, fn. 1; Cal. Rules of Court, rule 26(c)(1).)

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^* Before Marchiano, P. J., Stein, J., and Margulies, J.

^[1] Petitioner erroneously recites that notice was lodged with the superior court on April 27, 2006. However, we take judicial notice of our record in People v. Speakes (No. A113668). (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) That record demonstrates that the notice of appeal was filed by the superior court on April 24, 2006, and was lodged with this court on April 27, 2006.

^[2] By his petition, Allen Speakes has necessarily agreed to such expedited relief.

Description	By this petition for writ of habeas corpus, appellant, seeks a declaration that his notice of appeal in was constructively and timely filed. Respondent concedes that petitioner is entitled to the relief he seeks and waives issuance of an order to show cause. Respondent also waives oral argument and stipulates to the immediate issuance of the remittitur. Therefore, the petition for writ of habeas corpus is granted to the extent that the notice of appeal filed by the superior court is deemed constructively and timely filed.
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