Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus, and permission to file a late notice of appeal to challenge a judgment of the Superior Court of Orange County, No. 01CF2322, William R. Froeberg, Judge.
Appellate Defenders, Inc., and Athena Shudde for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Marilyn L. George, Deputy Attorney General, for Respondent.
OPINION
Before Acting P.J., Rylaarsdam, Aronson J., and Ikola, J.
In his petition for a writ of habeas corpus, petitioner asks this court to vacate his judgment and conviction on several grounds. He contends: (1) the trial court violated his right to due process and to a fair trial when it rejected his proposed vehicular manslaughter instructions; (2) trial counsel rendered him ineffective assistance by failing to request the court instruct the jury on the law of vehicular manslaughter; (3) appellate counsel rendered him ineffective assistance on the basis counsel failed to raise the above instructional errors on appeal; and (4) the evidence at trial was insufficient to sustain his murder conviction.
Additionally, petitioner further contends: (5) this court should permit him to constructively file a late notice of appeal. He argues he was denied his right to appeal the 2005 denial of his motion for a new trial, based on the ineffective assistance of two retained counsel, who failed to discuss the possibility of an appeal with him, and who did not file a timely notice of appeal on his behalf.
We conclude that petitioner’s claim regarding the constructive filing of a late notice of appeal has merit, and should be granted. His other contentions however, are meritless. Therefore, we grant his petition for a writ of habeas solely on his request for constructive filing of a late notice of appeal. We deny his petition on all other grounds.
I
Facts and Proceedings
In August 2001, Arturo Ortiz (Petitioner) was driving his pickup truck through Santa Ana traffic at a high rate of speed, while racing with another pickup truck. When the driver of the other truck suddenly hit his brakes, petitioner swerved into the oncoming traffic to avoid hitting the other vehicle. Petitioner’s truck collided with Jose Estrada’s smaller vehicle, containing five other passengers. Estrada was instantly killed, and his five passengers were seriously injured. Estrada’s six-year-old daughter Michelle died of her injuries six days later.
In May 2002, the jury found petitioner guilty of two counts of second degree murder. In October of 2002, he was sentenced to a term of 15years to life in state prison. The judgment on appeal however was reversed in 2004, because the trial court failed to apply the correct standard of review in deciding the defense motion for a new trial. We ordered the matter remanded back to the trial court for reconsideration of the motion for a new trial, along with directions to reinstate the judgment if the motion for a new trial was denied.
On February 25, 2005, the trial court denied his motion for a new trial. The original judgment and sentence were ordered reinstated by the court. No appeal was taken following the court’s ruling on his motion for a new trial.
II
Discussion
Petitioner’s Meritless Claims of Error
Petitioner makes several claims in his petition for a writ of habeas corpus that are meritless. These claims are as follows: (1) the trial court violated his right to due process and a fair trial when it rejected his proposed vehicular manslaughter instructions; (2) trial counsel rendered him ineffective assistance by failing to request the trial court instruct the jury on the law of vehicular manslaughter; and (3) appellate counsel rendered him ineffective assistance for failing to raise the above instructional errors on appeal.
These issues may be summarily denied on the following basis: The issue of instructional error was considered, and then denied by this court on appeal. Issues resolved on appeal will not be reconsidered on habeas corpus. (In re Clark (1993) 5 Cal.4th 750, 765.) Moreover, petitioner’s claim regarding ineffective assistance of counsel fails as well because this court concluded in its opinion that the trial court did not err as a matter of law in declining to instruct the jury on the law of vehicular manslaughter. Thus, absent more, petitioner is unable to establish that the representation of his trial or appellate counsel fell below an objective standard of reasonableness under prevailing professional norms, or that their deficient performance resulted in prejudice to him. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
Petitioner’s further claim of error contending that the evidence was insufficient to sustain his murder conviction should be summarily denied as well. This issue as raised is not cognizable on habeas corpus. The sufficiency of evidence to establish conviction of a defendant is not a proper issue for consideration in a habeas proceeding. (In re Lindley (1947) 29 Cal.2d 709, 723.)
Petitioner’s Claim Regarding the Denial of his Right to Appeal Has Merit
Petitioner’s claim of error regarding whether the trial court abused its discretion when it denied his new trial motion is the only issue petitioner can successfully raise on his appeal. Any other issue petitioner seeks to raise in this appeal would be deemed to be successive, and beyond the scope of the trial court’s remand.
Petitioner contends he was denied his right to appeal from the judgment of conviction following the 2005 denial of his motion for a new trial. He claims that his two retained counsel rendered him ineffective assistance of counsel based on their failure to discuss the possibility of an appeal with him, and based on their failure to file a timely notice of appeal on his behalf. We conclude that this particular claim has merit.
Petitioner never filed a notice of appeal in this matter for the reasons discussed below. Thus, the only way he can obtain the relief he seeks despite the rather obvious jurisdictional bar, is to file a constructive notice of appeal pursuant to In re Benoit (1973) 10 Cal.3d 72, 86-88. In Benoit, the California Supreme Court expanded the doctrine of constructive filing of a late notice of appeal to cover those cases where appointed counsel had promised a defendant to file a notice of appeal on his behalf, but then failed to do so. The court held when a defendant has been diligent in attempting to cause a notice of appeal to be filed on time but has been thwarted by circumstances beyond his or her control, the defendant may take advantage of the doctrine of constructive filing. (Id. at p. 89.)
The Events in this Case
The facts presented in this case are unusual. Petitioner was represented in his motion for a new trial in February 2005, by family retained attorney John Barnett. The motion hearing transcript ended with the court’s denial of the motion for a new trial, and the re-imposition of petitioner’s original sentence. The hearing was then adjourned. The transcript did not indicate the court ever notified petitioner of his appellate rights on the record. However, the minute order inexplicably states petitioner was advised of his right to appeal. Moreover, in his declaration, petitioner declares: “the court did not say anything about my appellate rights.”
Representation by Retained Counsel John Barnett and Michael Guisti John Barnett’s Representation of Petitioner
The retainer agreement entered into by Attorney Barnett and petitioner’s then-spouse Elizabeth, provided that the sole extent of Barnett’s representation of petitioner was related to the motion for a new trial. The retainer agreement further provided “no appeals need to be taken without both parties’ consent, and any appeal or other appellate court procedure will require a new fee and retainer agreement.... This agreement does not provide for services for any actual new trial, or for any extraordinary writ or other appellate court proceedings.”
Petitioner contends that Barnett reassured him his case would be back on appeal, and that he [Barnett] would speak to William Kopeny, petitioner’s original appellate attorney. Petitioner further declared in his supplemental petition: “I took these statements to mean that the denial of the motion could be appealed and Barnett would file the necessary paperwork.” Barnett never filed a notice of appeal on petitioner’s behalf.
In December 2008, Barnett responded to petitioner’s query regarding the fact a notice of appeal had not been filed on his behalf as follows: [Y]ou did not ask me to file such notice and I did not indicate to you, or suggest in any way that I would file a notice of appeal.” Barnett further advised petitioner: “The enclosed copy of the docket report indicates you were advised of your right to appeal.”
Michael Guisti’s Representation of Petitioner
Petitioner’s family also hired Attorney Michael Guisti to represent him post trial. A copy of Michael Guisti’s retainer agreement entered into between Guisti and petitioner’s then-wife Elizabeth in April 2005, indicates that the legal services Guisti was to provide for petitioner specifically included: “Representation on Writ for Habeas Corpus in State and Federal Court.” The agreement further noted that the following services were specifically excluded: “Appeals to the superior court appellate department; the court of appeal; the California Supreme Court; any federal court.”
Guisti filed a petition for a writ of habeas corpus on petitioner’s behalf in the Superior Court in December 2005, which was denied in January 2006. The petition filed by Guisti argued “there was insufficient evidence for the jury to find implied malice, a necessary element of second degree murder.” In stating its reasons for denial, the superior court noted however: “An order denying a motion for a new trial is reviewed by the appellate court on appeal from the final judgment.... Thus, once the judgment was reinstated, appeal was available to Petitioner. Habeas is not an appropriate remedy. The petition is procedurally denied on that basis.”
Petitioner contends he believed Guisti was hired to do whatever investigation was necessary, and to file whatever documents were needed to “fight” his case. He claims he was not aware of any difference between a petition for a writ of habeas corpus and a notice of appeal. He further contends that it was not until late 2008 that he first became aware that Guisti had not filed a notice of appeal on his behalf but had instead filed a petition for a writ of habeas corpus.
Petitioner further argues that both of his post trial counsel rendered him ineffective assistance because while neither counsel ever discussed the filing of a notice of appeal on his behalf, they should have known he wanted to pursue an appeal because of all the money his family had spent on his defense (i.e., his motion for a new trial and his earlier appeal by Attorney William Kopeny). Petitioner also contends the reason both counsel never specifically asked him if he wanted to pursue an appeal was because they were already aware that he wanted to pursue every avenue of relief available to him. Additionally, as part of his supplemental petition for a writ of habeas corpus, petitioner provided a declaration from San Diego criminal law specialist Joseph Milchen. In Milchen’s declaration, he opines that both of petitioner’s retained post trial counsel rendered him ineffective assistance. Milchen states both counsel both had an obligation to consult with petitioner regarding an appeal from the denial of the motion for a new trial, and Guisti, who was subsequently hired for “some appellate-related purposes” further had an obligation to at least discover the procedural status of petitioner’s case, and to perfect an appeal on his behalf. In sum, Milchen opines, “Based on petitioner’s direct appeal from the original judgment and the litigation associated with the motion for new trial, it further is my opinion that any reasonably competent criminal defense attorney would have concluded, or presumed, that petitioner wanted to appeal.”
The Order to Show Cause and the Superior Court’s Findings
To resolve the factual issues presented, we issued an OSC, remanding the matter back to the trial court for an evidentiary hearing in light of Roe v. Flores-Ortega (2000) 528 U.S. 470, (Roe) and returnable to this court for further proceedings. We asked the court to make specific findings of fact as to whether the trial court advised petitioner regarding his appellate rights; and whether Attorneys John Barnett and Michael Guisti consulted petitioner about filing an appeal.
The superior court held an evidentiary hearing, and specifically found: (1) the trial court did not advise petitioner regarding his appellate rights; (2) Attorney John Barnett did not consult with petitioner about filing an appeal; and (3) Attorney Michael Guisti did not consult with petitioner about filing an appeal.
Although the minute order indicates petitioner was given his appellate rights, this may have been a clerical error. In any case, the court was required to advise defendant of his right to appeal pursuant to California Rules of Court, rules 4.305, 4.470, but failed to do so.
Petitioner Should Be Permitted to Constructively File a Notice of Appeal
A. Counsel Failed to Properly Address Petitioner’s Appellate Rights
The doctrine of constructive filing and its relationship to perfecting an appeal was addressed in In re Chavez (2003) 30 Cal.4th 643, 658 (Chavez). In Chavez, the court chose to reject this doctrine where the facts established the defendant did not seek, and did not receive any assurances from counsel that counsel would prepare a notice of appeal or a written statement of reasonable grounds for appeal. As the court concluded “It is evident that none of the criteria for application of the principle of constructive filing are present in defendant’s case.... We expressly decline to extend the holding of that case [Benoit] 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.)
Similarly, the court in People v. Aguilar (2003) 112 Cal.App.4th 111, 115-116, concluded the principle of constructive filing was inapplicable because, “There [was] no indication appellants’ counsel agreed to prepare or file a statement of reasonable grounds for appeal and appellants do not demonstrate that they made diligent but futile efforts in seeking to ensure that their attorneys carried out that responsibility.”
In Roe, supra, 528 U.S. at pp. 471, 476-478, 480, however, the United Supreme Court addressed how to review claims of ineffective assistance of counsel for failing to file a notice of appeal, as well as the related claim of ineffective assistance in failing to discuss the option of filing an appeal with a client. Specifically, the court held “counsel has a constitutionally imposed 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 non frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.”
Petitioner here has met his burden of establishing that based on the “totality of the circumstances” he reasonably demonstrated to both retained counsel that he wanted to appeal or pursue in whatever manner possible, the denial of his motion for a new trial. Petitioner’s vigorous challenge to the denial of his motion for a new trial at least financially, as indicated by the fact he retained two counsel to represent his rights in this regard, demonstrate to us he wanted to explore every avenue of post trial relief available to him, including filing an appeal.
B. Petitioner Was Diligent in Pursuing His Appellate Rights
Even if we assume counsel, (and the trial court here as well) failed to advise petitioner regarding his appellate rights, in order to prevail, he must also establish he was diligent in pursuing those rights.
Petitioner explains that the three-year time gap in pursuing his failed notice of appeal was based on “good cause.” He contends that because his first appeal lasted three years and because his then Attorney William Kopeny did not keep him apprised of developments during that time period, he figured his next appeal would take about the same amount of time. Therefore, he did not check up on the status of his newest appeal for the next three years. In February 2008, he first learned that a notice of appeal had not been filed on his behalf, and he also learned at the same time that Michael Guisti had not filed a notice of appeal on his behalf but rather, had filed a “bare bones” petition for a writ of habeas corpus in December 2005.
While admittedly the multiple year delay gives us some pause, there is nothing in the record before us that belies petitioner’s version of the events. Thus, under the “totality of the circumstances” we conclude petitioner has met his burden of establishing he timely pursued his appellate rights.
Accordingly, petitioner may file a late notice of appeal under the doctrine of constructive filing.
III
Disposition
Petitioner’s request to file a late notice of appeal is hereby granted. On petitioner’s behalf, Attorney Athena Shudde is directed to prepare and file a notice of appeal in Orange County Superior Court case number 01CF2322, and the clerk of the superior court is directed to accept the notice for filing if presented within 30 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. Petitioner’s petition for a writ of habeas corpus is denied on all other grounds. In the interest of justice, the opinion in this matter is deemed final forthwith.