In re Rodriguez
Filed 4/17/09 In re Rodriguez CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MARCOS RODRIGUEZ, On Habeas Corpus. | F056735 (Stanislaus Sup. Ct. No. 1083857) |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Marcos Rodriguez, in pro per., for Petitioner.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Respondent.
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STATEMENT OF FACTS
On December 30, 2008, appellant filed in this court his most recent petition for writ of habeas corpus in his attempt to file a belated notice of appeal and request for certificate of probable cause from his felony convictions in Stanislaus County Superior Court following petitioners entry of pleas of guilty. According to petitioner, he told counsel he wanted to appeal, his sister saw counsel in counsels office and told him petitioner wanted to appeal. Apparently, petitioner also wrote counsel asking him to appeal. The petition was supported by a declaration from petitioners sister stating she spoke with counsel on May 13, 2008, and asked him to file an appeal on petitioners behalf.
DISCUSSION
On January 8, 2009, the Attorney General was directed to file a response to the petition. Also on January 8, 2009, a letter was sent to former trial counsel inviting him to file a declaration in response to the petition.
On January 21, 2009, a declaration was filed by former trial counsel indicating petitioner reached an agreed upon disposition and stipulated sentence on April 9, 2008, and judgment was entered on April 11, 2008. Consequently, it was not counsels practice to file a notice of appeal in such cases unless the client specifically asks him to do so. Petitioner did inform counsel he disagreed with the courts motion to withdraw his plea. Counsel did not recall a visit by petitioners sister or any family member. Counsel did acknowledge he received a letter from petitioner in August asking him to file a notice of appeal. The letter had a May 2008 date.
On January 26, 2009, petitioner filed a response to the declaration by former trial counsel.
On March 10, 2009, former counsel sent a copy of the letter he received. He states he received the letter on August 20, 2008. The letter informs counsel petitioner wants to appeal. It is in fact dated May 7, 2008, and has a postmark of May 13, 2008. Counsel states he does not know where the letter was between the date it was mailed and the date he received it.
On March 24, 2009, the Attorney General filed a response to the petition. The Attorney General had read the declaration, and asked for a copy of petitioners letter. After reading the letter, the Attorney General requested petitioners former counsel transmit a copy to this court. The Attorney General concedes petitioner is entitled to relief, both by way of filing a notice of appeal and a request for certificate of probable cause.
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 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 failing to timely file a notice of appeal and/or request for certificate of probable cause as required under California Rules of Court, rules 8.304(b) and 8.308, and Penal Code section 1237.5. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.)
There has developed a judicial policy that reasonable doubts as to the veracity of a petitioners allegations in these matters are to be resolved in favor of the petitioner in order to protect the right of appeal, as well as the policy that this courts power to grant relief 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, supra, 10 Cal.3d at p. 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 a reversal or modification of the judgment. (Pen. Code, 1240.1, subd. (b).)
In the present case, trial counsel did not timely file a notice of appeal or request for certificate of probable cause on petitioners behalf. Counsel likewise did not advise petitioner to file these documents himself. (In re Chavez (2003) 30 Cal.4th 643, 658 & fn.7.) Petitioners request counsel file a notice of appeal was timely placed in the mail. (In re Jordan (1992) 4 Cal.4th 116.) Similarly, petitioners sister requested an appeal be filed within the time a notice could be timely filed. The Attorney General thoroughly briefed the issue in his response to the petition and concluded petitioner is entitled to relief. This court appreciates the Attorney Generals effort in this regard.
DISPOSITION
Petitioner is directed to cause a notice of appeal and request for certificate of probable cause in Stanislaus County Superior Court action No. 1083857. Said notice and request are to be filed in the Stanislaus County Superior Court on or before 30 days from the date of the filing of this opinion.
Let a petition for writ of habeas corpus issue directing the Clerk of the Stanislaus County Superior Court, if he receives said notice and request on or before 30 days from the date of the filing of this opinion, to file the notice and request, to treat them as being timely filed, to cause the request to be ruled upon by the superior court, and in the event the court grants said request, to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court. Nothing in this opinion should be taken as an expression by this court on whether the request for certificate of probable cause should be granted or denied.
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*Before Wiseman, Acting P.J., Cornell, J. and Kane, J.
