Opinion
G055036
07-13-2017
In re DANNY LEE ANDREWS on Habeas Corpus.
Anna M. Jauregui-Law under appointment by the Court of Appeal for Petitioner. Xavier Becerra, Attorney General, and Julie Garland, Assistant Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF1461) OPINION Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Petition granted. Anna M. Jauregui-Law under appointment by the Court of Appeal for Petitioner. Xavier Becerra, Attorney General, and Julie Garland, Assistant Attorney General, for Respondent.
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Before Aronson Acting P.J., Fybel, J., and Thompson, J. --------
Petitioner, Danny Lee Andrews (Andrews) seeks relief from the failure to file a timely notice of appeal. The petition is granted.
A jury convicted Andrews of robbery and attempted robbery. In a bifurcated proceeding, the trial court found it to be true that he suffered two prior serious felony convictions. He was sentenced to 60 years to life in state prison.
In our unpublished opinion People v. Andrews (May 26, 2016, G051067) this court reversed and remanded, ordering the trial court to vacate its true findings regarding the prior allegations. On December 16, 2016, a retrial was held, and the trial court found the allegations to be true.
Andrews was informed by his appellate counsel, Kevin Sheehy, of the reversal in his case around June 2016. Shortly thereafter, Andrews wrote to his trial attorney, Shannon Winston, regarding his desire to be transported and to attend the re-trial proceedings. Winston did not respond to his letter, and Andrews did not receive notice from any person regarding the date of the retrial in his case. In late February 2017, Andrews received a copy of the minute order showing that a trial took place.
Andrews wrote to appellate attorney Sheehy who informed him that he had a right to appeal, and who sent him the notice of appeal paperwork. Upon receiving the paperwork, Andrews prepared the notice of appeal forms on March 14, 2017, and mailed them to the superior court for filing. Andrews received a letter dated March 21, 2017, from the superior court informing him that his notice of appeal was untimely.
In her declaration, petitioner's trial attorney Winston declares that after remand of the case following appeal, the Orange County District Attorney's office decided to retry Andrews on the allegation priors. Winston recalled sending a letter to Andrews in mid-September 2016, to inform him of the then scheduled trial date of October 14, 2016. However, counsel did not save a copy of the letter in her computer and she did not possess a hard copy of the letter.
Because she did not hear back from Andrews, counsel did not request a removal order for him to attend the trial. On October 14, 2016, the trial date was continued to December 16, 2016. Counsel did not notify Andrews of the December 16, 2016, trial date, nor she did she seek a removal order for him to be present at the trial.
Andrews was thus not present for his trial. Moreover, Andrews' trial counsel did not notify him of the results of his trial, and she did not inform him of his right to appeal.
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. (People v. Romero (1994) 8 Cal.4th 728.)
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.
The doctrine of constructive appeal has also been applied where a governmental act or omission has precluded a defendant from filing a timely notice of appeal. In People v. Slobodian (1947) 30 Cal.2d 362, 367-368, the court concluded the defendant was entitled to constructive filing of his notice of appeal where prison officials delayed what would have otherwise been a timely notice of appeal. Moreover, the court in People v. Martin (1963) 60 Cal.2d 615, 616-617, concluded "when a defendant has diligently sought to file a timely notice but has been frustrated due to some default on the part of public officials charged with the administration of justice, a late filing has been deemed sufficient." (Id. at p. 617.)
The petition for relief is granted. On Andrews' behalf, attorney Anna M. Jauregui-Law is directed to prepare and file a notice of appeal in Orange County Superior Court case No. 12WF1461 and the clerk of the superior court is directed to accept the notice for filing, if it is presented within 20 days of this opinion becoming final. Further proceedings, including the preparation of the record 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.