Filed 6/30/17 In re Mendez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MANUEL MENDEZ,

On Habeas Corpus.
F075216

(Stanislaus Super. Ct. No. 2060731)

OPINION

THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Tim Bazar, Public Defender, and M. Donnell Snipes, Deputy Public Defender, for Petitioner.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
-ooOoo-
Manuel Mendez (petitioner) seeks permission to file a belated notice of appeal by way of a petition for writ of habeas corpus, to challenge his no contest plea to burglary and possession of a controlled substance.


STATEMENT OF THE FACTS
M. Donnell Snipes (Snipes) represented petitioner at trial. On June 16, 2016, petitioner pled no contest to violations of Penal Code section 459 (burglary) and Health and Safety Code section 11377 (possession of a controlled substance). Petitioner also admitted priors pursuant to Penal Code section 667, subdivisions (b) and (d).
On August 17, 2016, petitioner was scheduled to return for sentencing, but failed to appear. On September 12, 2016, petitioner was sentenced to four years in prison. On September 29, 2016, petitioner contacted Snipes and requested the matter be placed back on calendar so he could withdraw his plea and file an appeal. On October 1, 2016, Snipes submitted the request to place the matter on calendar, and the court calendared the matter for October 27, 2016. On October 27, 2016, petitioner was not present in court and the matter was dropped. Snipes did not file a notice of appeal at that time.
On February 14, 2017, petitioner contacted Snipes to inquire about the status of his appeal, and discovered no notice of appeal had been filed. Snipes attempted to file a notice of appeal in Stanislaus County Superior Court on February 14, 2017, which was not filed due to being untimely. Petitioner filed the instant petition for writ of habeas corpus seeking leave to file a belated notice of appeal on March 2, 2017.
On April 20, 2017, this court issued an order granting the Attorney General leave to file an informal response. The Attorney General filed an informal response indicating it does not oppose petitioner’s request to file a belated notice of appeal.
DISCUSSION
A notice of appeal must be filed within 60 days after the judgment or order being appealed to confer appellate jurisdiction on this court. (Cal. Rules of Court, rule 8.308(a).) An appealable judgment in a criminal case is generally rendered at the time of sentencing. (Pen. Code, § 1237, subd. (a).) Based on petitioner’s September 12, 2016, sentencing, a timely notice of appeal must have been filed by November 14, 2016.
A criminal defendant has the burden of timely filing a notice of appeal, but that burden may be delegated to counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant relied upon the promise of trial counsel to timely file the notice on the defendant’s behalf, and displayed diligence in seeing that his attorney has discharged this responsibility. (In re Benoit (1973) 10 Cal.3d 72.) The doctrine protects defendants who have been “lulled into a false sense of security” by counsel’s promise. (Id. at p. 87.) Reasonable doubts as to the veracity of a petitioner’s allegations in these matters are to be resolved in favor of the petitioner to protect the right of appeal rather than forfeit it on technical grounds. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see In re Benoit, supra, 10 Cal.3d at p. 89.)
In petitioning this court, petitioner provides a declaration by Snipes signed under penalty of perjury, where Snipes states petitioner timely asked him to file a notice of appeal, and that Snipes did not file the notice of appeal as requested. Snipes further states that petitioner contacted him on February 14, 2017, to inquire as to the status of the appeal, which is when petitioner discovered no notice of appeal had been filed. In its informal response, the Attorney General concedes petitioner’s allegations appear to be sufficient to make a prima facie showing for relief.
Based on Snipes’s declaration that petitioner asked him to file a notice of appeal and the absence of opposition from the Attorney General, we find petitioner relied on his counsel’s promise to file an appeal, and diligently pursued the appeal by promptly filing a petition for writ of habeas corpus once he discovered no appeal had been filed. Therefore, we grant petitioner’s request to file a belated notice of appeal.
DISPOSITION
Petitioner is granted leave to file a notice of appeal, on or before 30 days from the date of this opinion, in Stanislaus County Superior Court case No. 2060731.
Let a writ of habeas corpus issue directing the Clerk of the Stanislaus County Superior Court, if the court receives the notice of appeal on or before 30 days from the date of this opinion, to treat the notice of appeal as being timely filed, and to process the appeal in accordance with the applicable rules of the California Rules of Court.
This opinion is final forthwith as to this court.