Opinion
Page 1425c
172 Cal.App.4th 1425c __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. LUIS E. BERMUDEZ, Defendant and Appellant. A119028 California Court of Appeal, First District, Fifth Division April 20, 2009THE COURT:
It is ordered that the published portion of the opinion filed herein on March 27, 2009 (172 Cal.App.4th 966; ____Cal.Rptr.3d ___), be modified as follows and the petition for rehearing is DENIED:
1. The third full paragraph beginning on page 5 with “An April 4 1980 letter” and ending on page 6 [172 Cal.App.4th 971, advance report, 3d full par.] with “ ‘cannot show prejudice’ ” is deleted.
2. At the end of the second full paragraph on page 6 [172 Cal.App.4th 972, advance report, 1st full par., last line], after the sentence ending “for the filing of petitions...,” add as footnote 6 the following footnote, which will require renumbering of all subsequent
6 A reviewing court may consider correspondence directed to the Governor’s office in determining legislative intent. (Karlin v. Zalta (1984) 154 Cal.App.3d 953, 968, fn. 9 [201 Cal.Rptr. 379]; accord, Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 847, fn. 5 [236 Cal.Rptr. 696].)
so that the paragraph now reads:
Finally, a September 11, 1980 letter to Governor Brown, Jr., from Yolo County District Attorney Richard L. Gilbert, a sponsor of Assembly Bill No. 2861 (1979-1980 Reg. Sess.), urging the signing of the bill, provides, “The bill has been amended in a number of particulars since its first introduction in order to provide... limitations on the time period for the filing of petitions....”
A reviewing court may consider correspondence directed to the Governor’s office in determining legislative intent. (Karlin v. Zalta (1984) 154 Cal.App.3d 953, 968, fn. 9 [201 Cal.Rptr. 379]; accord, Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 847, fn. 5 [236 Cal.Rptr. 696].)
3. On page 7 [172 Cal.App.4th 972, advance report, following the 4th full par.], following the first full paragraph beginning “Moreover, this statutory” add the following paragraph:
Page 1425d
For the first time on appeal, appellant asserts that a determination by this court that section 851.8(l) limits the time for filing a petition under section 851.8(c) constitutes a new rule of law and should not be applied to him because he was not on notice that the section 851.8(l) time limits applied to his case. Thus, he argues it would violate his right to due process to deny his petition on grounds of untimeliness. Appellant’s failure to raise this constitutional objection below waives the issue on appeal. (People v. Rudd (1998) 63 Cal.App.4th 620, 628 [73 Cal.Rptr.2d 807].) Moreover, long before appellant filed his petition, the Bermudez court recognized the interplay of sections 851.8(c) and 851.8(l) as an issue and, in dicta, noted that the Legislature apparently intended section 851.8(l)to apply to all section 851.8 petitions. (Bermudez, supra, 215 Cal.App.3d at p. 1230, fn. 5.) Thus, even if appellant’s argument were cognizable on appeal, we would conclude that principles of due process do not prohibit application of the time limits of section 851.8(l) to his petition.
so that the opinion reads:
Moreover, this statutory interpretation is reasonable. Section 851.8(c) serves to prevent a petitioner from filing a section 851.8 petition for relief while the criminal action is pending. The two-year limitation period in section 851.8(l) guards against the presentation of stale claims of factual innocence and encourages a swift conclusion to section 851.8 petitions. However, if good cause for the delay exists, and the prosecution is not prejudiced by it, the late filing is permitted.7
For the first time on appeal, appellant asserts that a determination by this court that section 851.8(l) limits the time for filing a petition under section 851.8(c) constitutes a new rule of law and should not be applied to him because he was not on notice that the section 851.8(l) time limits applied to his case. Thus, he argues it would violate his right to due process to deny his petition on grounds of untimeliness. Appellant’s failure to raise this constitutional objection below waives the issue on appeal. (People v. Rudd (1998) 63 Cal.App.4th 620, 628 [73 Cal.Rptr.2d 807].) Moreover, long before appellant filed his petition, the Bermudez court recognized the interplay of sections 851.8(c) and 851.8(l) as an issue and, in dicta, noted that the Legislature apparently intended section 851.8(l)to apply to all section 851.8 petitions. (Bermudez, supra, 215 Cal.App.3d at p. 1230, fn. 5.) Thus, even if appellant’s argument were cognizable on appeal, we would conclude that principles of due process do not prohibit application of the time limits of section 851.8(l) to his petition.
There is no change in the judgment.
Respondent’s petition for rehearing is denied.