Filed 11/1/18 In re Garza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
LARRY WADE GARZA,
On Habeas Corpus.
| F077128
(Kern Super. Ct. No. BF166592A)
OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Larry Wade Garza, in pro. per., for Petitioner.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Max Feinstat, Deputy Attorney General, for Respondent.
-ooOoo-
Larry Wade Garza (petitioner) seeks permission to file a belated notice of appeal by way of a petition for writ of habeas corpus, to challenge his conviction for transportation, etc., of a controlled substance pursuant to Health and Safety Code section 11379, subdivision (a),[1] with a three-year enhancement pursuant to section 11370.2, subdivision (c).
STATEMENT OF THE FACTS
Jonathan Yang represented petitioner at trial. In his petition, petitioner stated that after being sentenced on November 14, 2017, he attempted to contact Mr. Yang on December 28, 2017, asking if there was something petitioner could file to have his section 11370.2 enhancement removed after passage of Senate Bill No. 180. Petitioner also stated that he had his wife contact Mr. Yang, but Mr. Yang did not respond to either of them.
On January 30, 2018, petitioner states he received appeal forms and habeas corpus forms from his prison law library. He immediately filled out and attempted to file a notice of appeal, and on February 7, 2018, he filed a petition for writ of habeas corpus in the Kern County Superior Court. His petition for writ of habeas corpus appears to have been denied on February 13, 2018, and petitioner filed this petition for writ of habeas corpus to file a belated notice of appeal on March 12, 2018.
Pursuant to this court’s request, Kevin Moran filed a letter on behalf of Kern County Public Defender’s Office on May 10, 2018 in response to this petition. Mr. Moran indicated that Mr. Yang filed a motion to modify petitioner’s sentence on February 26, 2018. Kern County Superior Court heard the motion on March 29, 2018, and granted the request to strike the three-year enhancement under section 11370.2, subdivision (c), reducing petitioner’s sentence to six years in prison.
On July 16, 2018, this court issued an order granting the Attorney General leave to file a response. The Attorney General filed an informal response on August 7, 2018, stating petitioner’s allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel.
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 November 14, 2017, sentencing, a timely notice of appeal should have been filed by January 16, 2018.
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, 86-87, 89.) 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.)
One of the duties imposed upon trial counsel is the “duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.” (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)
“An attorney may think an appeal useless or too expensive, or may deem his compensation inadequate, and therefore decide against the step [filing the notice of appeal]. In such a situation he should consult his client and, if overruled, may choose to withdraw; it is scarcely proper to allow the time to lapse without advising his client of the danger of loss of the right.” (In re Fountain, supra, 74 Cal.App.3d at p. 715.)
Based on petitioner’s statement that he attempted to contact his attorney within the 60-day time to appeal and received no response, and the absence of contradicting statements from Mr. Moran or opposition from the Attorney General, we find the doctrine of constructive filing is applicable. Although petitioner does not allege his attorney made a promise to file a notice of appeal, petitioner’s reliance on his attorney’s duty to consult and advise petitioner of his appellate rights is comparable. Petitioner displayed diligence is seeing that his attorney discharge that responsibility by attempting to contact him and asking his wife to contact him regarding his appellate rights. Upon not receiving a response, petitioner diligently pursued the appeal by promptly attempting to file a notice of appeal, filing a petition for writ of habeas corpus in the superior court, and ultimately filing this petition requesting leave to file a belated appeal.
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 60 days from the date of this opinion, in Kern County Superior Court case No. BF166592A.
Let a writ of habeas corpus issue directing the Clerk of the Kern County Superior Court, if the court receives the notice of appeal on or before 60 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.
