In re Bowman
Filed 8/8/13
In re Bowman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In
re WENDY BOWMAN
on Habeas Corpus.
G048610
(Super. Ct. Nos. 11NF0920 &
10NF3346)
O P I N I O N
Original proceedings; petition for a
notice of appeal. Petition granted.
Appellate Defenders, Inc., and Patricia Ihara
for petitioner.
Kamala D. Harris, Attorney General, and Julie
L. Garland, Assistant Attorney General, for Respondent.
* * *
THE COURT:
Petitioner, Wendy Bowman seeks relief from
the failure to file a timely notice of
appeal in case No. 11NF0920. The
petition is granted.
Following a jury trial, petitioner was found
guilty of receiving stolen property. In
a bifurcated proceeding, the court
found true a prior strike and an on bail enhancement. On July 20,
2012,
petitioner was sentenced on case No. 11NF0920, and case No. 10NF3346 [a guilty
plea] to 6 years in state prison.
Petitioner was represented at trial in case
No. 11NF0920 by public defender Catherine Learned. After the jury returned its verdict,
petitioner told Learned that she wanted to appeal the verdict in this case, and
believed that Learned would do whatever was needed to “start†her appeal. However, prior to petitioner’s sentencing
hearing, her family retained Attorney George Vincent Vargas to represent
her. Petitioner believed that Vargas was
standing-in for Learned. However, Vargas
believed that the scope of his representation was limited to sentencing hearing
matters only. After petitioner was
sentenced, Vargas never discussed with her about filing an appeal.
Learned never communicated to Vargas that
petitioner desired to file an appeal in her case. After petitioner went to state prison, she
tried to reach Learned by mail and by phone to find out the status of her
appeal, but Learned failed to respond to her queries.
The principle of constructive filing of a
notice of appeal should be applied in situations in which a criminal defendant
requests trial counsel to file a notice of appeal on his behalf, and counsel
fails to do so in accordance with the law.
(In re Benoit (1973) 10 Cal.3d
72, 87-88.) This is because a trial
attorney who has been asked to file a notice of appeal on behalf of a client
has a duty to file a proper notice of appeal, or tell the client how to file it
himself. In this case, both of
petitioner’s attorneys either individually, or in conjunction with one another
failed her. Learned failed to advise
Vargas about petitioner’s desire to file an appeal, and then failed to respond
to petitioner’s requests regarding the status of her appeal. Vargas failed to consult with petitioner
about an appeal, failed to advise her regarding the filing of a proper notice
of appeal in accordance with the law, and failed to properly advise her how to
do so.
The Attorney General does not oppose
petitioner’s request for relief to file a late notice of appeal without the
issuance of an order to show cause. (
The petition for relief is granted. On petitioner’s behalf, Appellate Defenders,
Inc. is directed to prepare and file a notice of appeal in Orange County case
No. 11NF0920, and the Clerk of the Superior Court is directed to accept the
notice for filing if presented within 30 days of this opinion becoming
final. Further proceedings, including
the preparation of the records on appeal, are to be conducted according to the
applicable rules of court. In the
interest of justice, the opinion in this matter is deemed final as to this
court forthwith.
name="_ftn1" title="">* Before Moore Acting P.J., Aronson, J., and
Ikola, J.
