In re Gay

Filed 10/5/06 In re Gay CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

THE COURT:^*

Petitioner Charles Lloyd Gay seeks a writ of habeas corpus directing the Humboldt County Superior Court to accept his notice of appeal as timely filed under the constructive filing doctrine.

On January 6, 2006, a jury convicted petitioner of violating Health and Safety Code section 11379, subdivision (a), transporting/selling a controlled substance. Petitioner was sentenced on March 1, 2006 to a four-year term of imprisonment. Petitioner avers by declaration that his trial attorney told him she would file a notice of appeal on petitioner’s behalf. Trial counsel in turn provides a declaration admitting “[i]t is likely that [petitioner] believed that I would file a timely notice of appeal for him and reasonably relied on this belief,” as petitioner notified counsel “well in advance of the filing deadline that he wished to file an appeal,” but “[a]s a result of both the sentencing work I performed for [petitioner] and the work required by [two other] jury trials, I forgot to file [petitioner’s] notice of appeal on time.” A notice of appeal was belatedly filed by counsel on May 10, 2006. Petitioner discovered the late filing in August 2006 and promptly filed his habeas petition on September 11, 2006.

Through the doctrine of “constructive filing,” Courts of Appeal retain jurisdiction to relieve an incarcerated defendant from the time limit for filing a notice of appeal. (In re Benoit (1973) 10 Cal.3d 72, 84 (Benoit).) “[C]onstructive filing . . . embodies nothing more than a basis for judicial acceptance of an excuse for the appellant’s delay in order to do justice.” (Ibid.) The doctrine of constructive filing applies “where the defendant is incarcerated or otherwise in custody after having been properly notified of his appeal rights by the sentencing judge and has made arrangements with his trial attorney to file a notice of appeal for him.” (Id. at p. 86.) Defendant must show that his or her attorney undertook the responsibility of filing a notice of appeal but did not do so, that defendant was lulled into “a false sense of security,” and that “the circumstances are compelling.” (Id. at pp. 86-87.)

As respondent concedes, petitioner is entitled to relief under Benoit, supra. The parties have waived issuance of an order to show cause and oral argument and stipulate to the immediate issuance of the remittitur.

Therefore, the petition for writ of habeas corpus is granted, and a writ of habeas corpus shall issue, to the extent that the notice of appeal filed on May 10, 2006 in People v. Charles Lloyd Gay, Humboldt County Superior Court Case No. CR054597S, is deemed constructively and timely filed. This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 24(b)(3).) Pursuant to the parties’ stipulation, the remittitur shall issue immediately. (Cal. Rules of Court, rule 26(c)(1).)

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^* Before Jones, P.J., Simons, J. and Bruiniers, J. (Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution).