PEOPLE v. PEREZ

Filed 3/7/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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STORY CONTINUED FROM PART I

II

Alternatively, defendant asks us to construe his proposed statement of reasonable grounds for appeal as timely pursuant to the constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72 (hereafter Benoit) because his trial attorney was ineffective for failing to file such a statement.

A

In Benoit, the California Supreme Court held that where an incarcerated defendants attorney agrees to file a notice of appeal on the defendants behalf, but then neglects to do so in a timely fashion, the appellate court may construe a late notice of appeal as having been timely filed if the defendant displayed diligence in attempting to have the attorney discharge the responsibility. (Benoit, supra, 10 Cal.3d at pp. 86-87, 89; see also Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669.) The Supreme Court explained that the principle of constructive filing . . . in our view embodies nothing more than a basis for judicial acceptance of an excuse for the appellants delay in order to do justice. (Benoit, supra, 10 Cal.3d at p. 84.)

Benoit extended the constructive filing doctrine from earlier decisions applying the doctrine (1) only to incarcerated appellants and (2) in special circumstances where the delay in filing the notice of appeal (a) has resulted from conduct or representations of prison officials upon which the prisoner relied and (b) has not been due substantially to fault on the part of the prisoner. (Benoit, supra, 10 Cal.3d at p. 86.) In extending the constructive filing doctrine from the prison cases, the Supreme Court emphasized the element of reliance: [W]e can see some reason to excuse a prisoner unlearned in the law who has relied upon the assurance of his trial counsel that the notice of appeal will be timely filed by the latter since the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him than upon a prison official who was not an attorney and had no familiarity with his case. (Ibid.)

More recently, the California Supreme Court revisited the doctrine of constructive filing in the context of a defendants request for leave to file a late statement of reasonable grounds for appeal. (In re Chavez (2003) 30 Cal.4th 643 (hereafter Chavez).) Esteban Chavez pled guilty to charges while represented by one trial attorney and then unsuccessfully moved to withdraw his guilty plea while represented by another attorney. Chavez did not ask either attorney to file a notice of appeal on his behalf. At the request of Chavezs family, a third attorney consulted with Chavez shortly after sentencing to determine whether to represent him on appeal; but that attorney did not agree to file any documents on Chavezs behalf and declined to represent him. (Id. at pp. 647-648.) Chavez later filed a petition for writ of habeas corpus in the Court of Appeal, seeking relief under the Benoit constructive filing doctrine from his failure to file a timely statement of reasonable grounds for appeal. The Court of Appeal instead granted relief pursuant to former rule 45(e), now rule 8.60(d), but the Supreme Court reversed. (Id. at p. 648.)

The Supreme Court first held that an appellate court lacked authority under former rule 45(e) to excuse a defendants failure to obtain a certificate of probable cause (Chavez, supra, 30 Cal.4th at pp. 652-657), a holding that was then incorporated into former rule 45(e), as amended effective January 1, 2005. (Advisory Com. com., 23 Pt. 2 Wests Ann. Codes, Rules (2005 ed.) foll. rule 45, pp. 59-60.)

The Supreme Court then addressed Chavezs contention that his failure to file a timely statement of reasonable grounds for appeal could be saved under the doctrine of constructive filing. (Chavez, supra, 30 Cal.4th at p. 657.) In Benoit, we applied the doctrine of constructive filing based upon a promise or representation made by each defendants attorney that he would timely file a notice of appeal on his clients behalf. [Citation.] We relied in part upon the circumstance that the assurances had been made by the defendants trial counsel, noting that the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him . . . . [Citation.] (Chavez, supra, 30 Cal.4th at p. 658.)

The court noted that, in contrast to the situation in Benoit, in the present case defendant did not seek and did not receive any assurances from his original or substituted trial counsel that counsel would prepare or file a written statement of reasonable grounds for appeal. (Chavez, supra, 30 Cal.4th at p. 658.) Rather, Chavez terminated representation by appointed counsel, after which a third attorney, contacted by Chavezs family, declined to represent Chavez. Therefore, the court concluded: It is evident that none of the criteria for application of the principle of constructive filing are present in defendants case, and accordingly his statement of reasonable grounds for appeal may not be deemed constructively filed pursuant to Benoit. We expressly decline to extend the holding of that case to situations in which an attorney not only does not agree to prepare or file a statement of reasonable grounds for appeal, but also does not agree to represent the defendant. (Ibid.; see also People v. Aguilar (2003) 112 Cal.App.4th 111, 116 [statements of reasonable grounds for appeal were not timely under the constructive filing doctrine because the defendants were not incarcerated, made no showing that their attorneys agreed to file such statements, and showed no diligence in seeking to ensure their attorneys carried out that responsibility].)

Because the criteria for application of the constructive filing doctrine did not apply, the Supreme Court declined to decide whether the Benoit doctrine is inapplicable in every case involving the timeliness of filing a statement of reasonable grounds for appeal. (In re Chavez, supra, 30 Cal.4th at p. 658, fn. 7.)

Whether the Benoit constructive filing doctrine extends to a statement of reasonable grounds for appeal is an issue that occurs regularly in this court. We see no principled basis to distinguish constructive filing of a statement of reasonable grounds for appeal from constructive filing of a notice of appeal. The trial attorney has the same duty to assist an incarcerated client in perfecting an appeal regardless of whether the defendant pled guilty or was convicted after a trial. And the incarcerated defendants reliance on counsels promise to assist in perfecting the appeal is the same whether the defendant pled guilty or was convicted after a trial.

The trial attorneys duty to assist in filing a notice of appeal upon the defendants request is well-established. [I]f a defendant requests an attorney to file a notice of appeal, the attorney must either file such notice or clearly and immediately inform the defendant that he will not file such notice and further inform defendant that he can himself file the notice of appeal. (In re Benoit, supra, 10 Cal.3d at p. 88.) Furthermore, [i]t shall be the duty of every attorney representing an indigent defendant in any criminal . . . case to execute and file on his or her clients behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorneys judgment, it is in the defendants interest to pursue any relief that may be available to him or her on appeal; or when directed to do so by a defendant having a right to appeal. ( 1240.1, subd. (b).)

The law is equally well-established that the trial attorney has a duty to assist an indigent, incarcerated client in preparing a statement of reasonable grounds for appeal. In the case of an indigent criminal defendant, it shall be the duty of the attorney who represented the person at trial to provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal. ( 1240.1, subd. (a).) Moreover, [i]t is readily apparent that where a defendant has been convicted upon a plea of guilty, his right to appeal may be dependent on many technical requirements of which he may be unaware. (People v. Ribero (1971) 4 Cal.3d 55, 64.) The Legislature has conditioned the right to appeal from a plea of guilty upon the filing of the required statement. Advice or assistance of counsel in filing the notice of appeal is meaningless if counsel does not also advise or assist in preparation and filing of the required statement. It follows that counsels obligation to assist in filing the notice of appeal necessarily encompasses assistance with the statement required by section 1237.5. (Id. at p. 66.)

Thus, in the context of a guilty or nolo contendere plea, when a trial attorney agrees to file a notice of appeal for an indigent, incarcerated client, the attorney must also assist in preparing a statement of reasonable grounds for appeal if the defendant has asked for help with such a statement or if the attorney is aware of an arguable issue that is cognizable on appeal only with the trial courts issuance of a certificate of probable cause.

The principle of the Benoit constructive filing doctrine-- embodying a basis for judicial acceptance of an excuse for the appellants delay in order to do justice (Benoit, supra, 10 Cal.3d at p. 84)--is served by extending the doctrine to a statement of reasonable grounds for appeal.

Accordingly, we conclude the Benoit doctrine of constructive filing applies when an incarcerated defendant relies on trial counsels promise to file a statement of reasonable grounds for appeal or trial counsels promise to perfect an issue for appeal which requires a certificate of probable cause, but counsel then neglects to assist the defendant in preparing and filing a statement of reasonable grounds for appeal. We further conclude the Benoit doctrine applies when an incarcerated defendant relies on trial counsels promise to file a notice of appeal, and counsel identifies a cognizable issue in the notice of appeal that requires issuance of a certificate of probable cause, but neglects to assist the defendant in preparing and filing a statement of reasonable grounds for appeal. In the latter situation, the incarcerated defendant reasonably relies on trial counsels promise to preserve the defendants appeal, which necessarily includes counsels obligation to preserve for appeal all arguable issues of which counsel is aware.

The Supreme Courts decision in Chavez is not inconsistent with this conclusion. Chavez did not ask his trial counsel for assistance in filing a notice of appeal or a statement of reasonable grounds for appeal; nor was he ever represented by the attorney who consulted with him regarding representation on appeal. Consequently, Chavez failed to show that he relied on counsel to preserve his right to appeal, which is a requirement of the Supreme Courts decision in Benoit. Moreover, the holding in Chavez does not limit the doctrine of constructive filing to cases in which a defendant expressly asks trial counsel to file a statement of reasonable grounds for appeal; the decision merely concludes that the constructive filing criteria are absent when an attorney declines to represent a defendant and does not agree to prepare or file a statement of reasonable grounds for appeal.

Here, in contrast to the situation in Chavez, the record shows that defendants trial counsel agreed to file a notice of appeal on his behalf. Thus, the trial court told defendant that his attorney could advise him as to whether arguably meritorious grounds for an appeal existed. Soon thereafter, the attorney filed a notice of appeal on defendants behalf.

When a constructive filing is requested, we ordinarily would require a defendant to substantiate, by declarations, the trial attorneys promises or representations and the defendants reliance on them. Here, however, it is undisputed that defendants trial attorney agreed to file the notice of appeal. Defendant also has shown that in the notice of appeal, his trial attorney identified an issue for which the issuance of a certificate of probable cause is required, i.e., proceeding to trial after defense counsel declared a doubt as to defendants mental competence. (See, e.g., People v. Mendez, supra, 19 Cal.4th at p. 1100.) Further, defendant has shown that after identifying such an issue, his trial attorney neglected to file, or to assist defendant in filing, a statement of reasonable grounds for appeal. In filing the notice of appeal, the trial attorney obviously believed that the issue she identified in the notice of appeal was an arguable issue; otherwise, she would not have identified it in the notice of appeal. The trial attorney should have known that this mental competence issue would be cognizable on appeal only if defendant filed a statement of reasonable grounds for appeal and the trial court then issued a certificate of probable cause.

Given that defendant evidently relied on his trial attorney to perfect his appeal, we conclude that defendant reasonably relied on his attorney to do so in the proper manner as to issues the attorney believed were arguable, i.e., by assisting defendant with preparation of a statement of reasonable grounds for appeal. We further conclude that, as a practical matter, defendant had no reason to know that the issue of mental competence, identified by his trial attorney in the notice of appeal, was not properly perfected for review on appeal. He diligently sought to perfect his appeal by having his attorney file a timely notice of appeal. Because he reasonably relied on his trial attorney to perfect all arguable issues on appeal, we conclude the Benoit constructive filing criteria have been met in this case.

B

Nevertheless, we will deny the motion for constructive filing for another reason.

When a defendant timely files a statement of reasonable grounds for appeal, the trial court is required to issue a certificate of probable cause if the defendant identifies a cognizable issue on appeal which is not clearly frivolous and vexatious. (In re Brown, supra, 9 Cal.3d at p. 683, fn. 5.)

Here, defendant seeks leave from this court to file a belated statement of reasonable grounds for appeal in the trial court which identifies as an appellate issue the trial courts denying his request for a hearing to determine whether he was competent to stand trial. That proposed issue is clearly frivolous.

A defendant is mentally incompetent if, as a result of mental disorder, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. ( 1367, subd. (a).) The trial court must hold a hearing regarding the defendants mental competence whenever there is substantial evidence of incompetence, considering all of the relevant circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1164.) However, the court is not required to conduct a hearing based solely on counsels opinion that the defendant might be incompetent. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112.) Under the substantial evidence test, the defendant must show more than bizarre actions or statements by him, assertions by defense counsel that the defendant is incapable of cooperating in the defense, or psychiatric testimony that the defendant is immature, dangerous, psychopathic, or homicidal, without reference to the defendants ability to assist in his defense. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)

Here, the record is devoid of evidence that defendant was unable to understand the nature of the proceedings or to assist counsel in his defense. His trial attorney had no difficulty communicating with defendant. She declared a doubt as to defendants competency only because she thought she had a duty to do so after defendant reported seeing aliens. The trial court conducted a full inquiry regarding defendants competence and ascertained that defendant was able to communicate with his attorney, knew the nature of the charges, and understood the roles of the parties, the trial judge and the jury. Significantly, when defendant that same day pled no contest to some of the charges, his trial attorney affirmatively represented to the court, I concur that he is currently competent to enter the plea.

The decision whether to issue a certificate of probable cause lies with the trial court in the first instance. (Rule 8.304(b)(2).) We do not suggest that an order of this court granting a motion for constructive filing of a statement of reasonable grounds for appeal necessarily establishes the defendant has identified a nonfrivolous and cognizable issue to be raised on appeal. However, because we are aware in this case that the sole issue identified in defendants motion for constructive filing is clearly frivolous, it would be an idle act for us to grant the motion for constructive filing.

III

The trial court cited four aggravating factors justifying imposition of the upper term: defendant has prior adult criminal convictions that are numerous and serious; his prior performance on parole was unsatisfactory; the crime involved great violence and took place in front of the minor children of the victim and defendant; and defendant assaulted the victim on a prior occasion. The court emphasized that any one of those aggravating factors alone would warrant the upper term.

Defendant contends the trial court violated his Sixth Amendment right to have a jury determine the facts upon which the court relied to sentence him to the aggravated term, citing Blakely v. Washington (2004) 542 U.S. 296. The contention fails for reasons that follow.

Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington, supra, 542 U.S. at pp. 302-304 [159 L.Ed.2d at pp. 413-414].)

Accordingly, in Cunningham v. California (2007)___ U.S. ___ [127 S.Ct. 856, 860, ___ L.Ed.2d ___], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [2007 WL 505809].)

As we have pointed out, an exception to this rule is that the trial court may increase the penalty for a crime based upon the defendants prior convictions, without having this aggravating factor submitted to the jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) That is what occurred in this case. The court cited defendants numerous prior criminal convictions as a basis for imposing the upper term and stated this factor alone justified the upper term. Consequently, the courts consideration of other aggravating factors that were not submitted to the jury was harmless because one valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

SIMS , J.

HULL, J.

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