Opinion
G053360
03-14-2018
JORGE CARDENAS SOSA, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Jorge Cardenas Sosa, in pro. per., for Petitioner. Kamala D. Harris, Attorney General for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 98NF2525) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition granted. Jorge Cardenas Sosa, in pro. per., for Petitioner. Kamala D. Harris, Attorney General for Real Party in Interest.
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Before O'Leary, P.J., Aronson, J., and Ikola, J. --------
The issue presented is whether respondent court must file petitioner Jorge Cardenas Sosa's untimely notice of appeal. We answer this question in the affirmative and therefore issue a peremptory writ of mandate.
PROCEDURAL HISTORY
In 1998, petitioner pleaded guilty to: (1) possession of a controlled substance for sale (Health & Saf. Code, § 11351); and (2) driving without a valid license (Veh. Code, § 12500, subd. (a)). Petitioner was sentenced to probation.
In April 2015, respondent court filed correspondence from petitioner requesting a copy of the complaint, his written guilty plea form, and the minutes from his case. The court responded the same day by mailing these documents to petitioner at his address in a federal correctional institution in Mendota, California.
In May 2015, petitioner filed a petition for resentencing pursuant to Penal Code section 1170.18. Respondent court mailed a conformed copy of the petition back to petitioner at the same federal correctional institution address. An August 2015 notation in the minutes indicated: petitioner "is in Federal Prison. No transportation Order processed."
After holding a hearing on September 3, 2015, respondent court entered an order denying the resentencing petition. Respondent court ruled that the "charges do not qualify for reduction . . . ." The court ordered notice to petitioner, but the order indicates his address as a residence in Anaheim, California. The order denying the petition was only mailed to petitioner at the federal correctional institution on December 28, 2015, after petitioner again mailed a request to respondent court for a ruling on his petition.
Respondent court received, but did not file, a notice of appeal on January 20, 2016. Respondent court notified petitioner that "[t]he last day for timely filing was November 2, 2015."
On April 5, 2016, petitioner filed a document with this court entitled "Filing Error Misjustice." We construed the correspondence as a petition for writ of mandate seeking an order to respondent court to file the notice of appeal received but not filed on January 20, 2016. We invited an informal response to the petition and provided notice we were considering the issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Real party notified this court that no response to the petition would be filed.
ANALYSIS
A peremptory writ in the first instance may issue when there is "'clear error under well-settled principles of law and undisputed facts . . . .'" (Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 919.) Here, the facts are undisputed as set forth above and real party does not oppose the relief sought. Petitioner's intention to file a timely notice of appeal was defeated by administrative error at respondent court. Petitioner was not served with the applicable ruling until it was too late to file a notice of appeal. The legal question is whether the law provides petitioner a remedy in these circumstances.
The general rule in California is that courts — even in criminal cases — have no power to consider an untimely appeal. (Cal. Rules of Court, rule 8.308(a); In re Chavez (2003) 30 Cal.4th 643, 650.) "The superior court clerk must mark a late notice of appeal 'Received [date] but not filed,' notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project." (Cal. Rules of Court, rule 8.308(d).)
However, injustices have been averted by the application of a constructive filing doctrine in appropriate circumstances, such as a convicted defendant's efforts to file a notice of appeal being stymied by dilatory prison mail systems. The rationale for this rule is self-evident. "[T]he state's failure, through its employees, to function in protection of [an] appellant's exercise of his right to appeal, will not deprive him of such right after he has timely performed, as far as the state allows, all the steps required by the state law in perfection of his appeal." (People v. Slobodion (1947) 30 Cal.2d 362, 367.) "[T]he state, which establishes the time limit for appeals, may not frustrate those within its control from meeting the requirement, whether by the slowness of prison methods or by the negligence or misleading assurances of its employees." (People v. Riser (1956) 47 Cal.2d 594, 595; see also In re Benoit (1973) 10 Cal.3d 72, 86-87 [extending principle of constructive filing to cover defense attorney error in failing to timely file notice of appeal].)
Though the government employees here are those of the court rather than a state prison, the rationale stated in these earlier cases applies equally here. By definition, an appeal cannot be filed until a ruling has been made. Respondent court repeatedly demonstrated it was aware that petitioner resided at a federal prison. Yet when it came time to actually serve him with the order at the correct location, respondent court failed to do so. It would be unfair to deprive petitioner of his right to appeal the denial of his resentencing petition in these circumstances.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to file the notice of appeal received by the clerk of the court on January 20, 2016, which challenges the September 3, 2015 order denying resentencing pursuant to Penal Code section 1170.18.