Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal., Super. Ct. No. 07CF1045
Jamie Popper under appointment by the Court of Appeal for petitioner.
Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent.
OPINION
Before Rylaarsdam, Acting P.J., O’Leary, J., and Moore, J.
Petitioner, Cesar Rodriguez (Rodriguez) seeks relief from the failure to file a timely notice of appeal. The petition is granted.
A jury convicted Rodriguez of possessing methamphetamine for sale, possessing cocaine for sale, possessing a firearm and ammunition as an ex-felon, and cultivating marijuana.
In People v. Rodriguez (G039986, Unpublished, July 29, 2009) this court affirmed the judgment but ordered a remand for sentencing. In the opinion, this court concluded: “[R]emand is required for the trial court to consider whether to impose consecutive or concurrent sentences on count one for defendant’s methamphetamine possession and on count five for his possession of a firearm, and to state its reasons if it imposes consecutive sentences. The evidence is consistent with these offenses occurring in the close temporal and spatial proximity that permits concurrent sentencing even under the Three Strikes law. (Deloza, supra, 18 Cal.4th at p. 595; § 667, subd. (c)(6)). The trial court retains discretion to impose consecutive sentences in these circumstances (ibid.), as it did here, but must state its reasons for doing so. (Cal.Rules of Court, rule 4.406(b)(5).)”
Additionally, the disposition portion of our opinion read: “The judgment is affirmed with directions for a limited remand for the trial court to consider whether to impose consecutive or concurrent sentences on counts one and five and, if it imposes consecutive sentences, to state its reasons for doing so.”
Following the court’s opinion, petitioner’s trial attorney and his appellate attorney informed him that the next step in the criminal process would be resentencing. Petitioner’s trial counsel advised him that it could take several months or possibly longer for resentencing to occur.
The remittitur in this case issued on October 20, 2009. Petitioner was never brought to a resentencing hearing. In August or September of 2010, petitioner contacted his trial attorney to inquire about the status of his resentencing hearing. In response to petitioner’s inquiry, trial counsel checked the superior court file and discovered a nunc pro tunc order dated October 30, 2009. The order stated in relevant part “The court makes nunc pro tunc entry under count 5 to clarify sentence to read as follows; The crimes and their objectives were predominantly independent of each other. Copy of minute order forwarded to all [a]ttorneys.”
Neither Rodriguez nor his trial counsel, were present at this resentencing proceeding. Nor did Rodriguez, his trial counsel, or his appellate counsel ever receive a copy of the October 30, 2009, minute order. Petitioner contends he planned to argue that his prison terms should be concurrent and not consecutive, and to appeal any contrary decision.
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 petitioner’s behalf, attorney Jamie Popper is directed to prepare and file a notice of appeal in Orange County Superior Court Case number 07CF1045, 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.