Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV-33731
ELIA, J.Petitioner was adjudged a ward of the court in a proceeding under Welfare and Institutions Code section 602 and sought to appeal. (See § 800; Rules of Court, rule 8.400.) This court dismissed the appeal because the notice of appeal was untimely filed (In re Antonio O., H032659). (See Evid. Code, §§ 452, subd. (d); 459.) Petitioner filed a petition for writ of habeas corpus in this court, alleging that retained counsel rendered ineffective assistance by negligently "mis-calendaring the due date of the Notice of Appeal, and filing it one day late."
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The California Supreme Court denied a petition for review without prejudice to filing a petition for writ of habeas corpus in this court alleging ineffective assistance of counsel for the failure to file a timely notice of appeal (S168495, Jan. 21, 2009). (See Evid. Code, §§ 452, subd. (d); 459.)
On March 30, 2009, this court issued an order to show cause. No return was filed. The Santa Clara County Counsel filed a letter stating that the Santa Clara County Probation Department did "not oppose the Court granting the minor relief from default for failure to file a timely notice of appeal." The California Attorney General filed a letter stating that he did "not oppose granting relief... and allowing appellant to go forward with his appeal."
A. Petition
Since no return was filed in response to this court's order to show cause, there are no disputed factual questions requiring resolution. (See In re Serrano (1995) 10 Cal.4th 447, 455.) Under this circumstance, and in the absence of anything in our own records contradicting the material facts alleged in the petition, we may properly accept as true those factual allegations and decide the merits of the case. (Id. at pp. 455-456.) "[P]etitioner has in effect been relieved of the burden of proving the factual allegations set forth in the petition." (Id. at p. 456.)
The petition for writ of habeas corpus and matters of record indicate the following facts. Delinquency proceedings were commenced by petition alleging four violations of Penal Code section 245, subdivision (a)(1). An amended petition added gang enhancements. After the jurisdiction hearing, the court sustained the alleged violation with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)) as to count one and found petitioner was a person described by section 602. On December 27, 2007, following the disposition hearing, the juvenile court declared petitioner to be a ward of the court, placed petitioner on probation, and assigned petitioner to the Alternative Placement Academy under an electronic monitoring program. Petitioner is in the constructive custody of the Santa Clara County Probation Department.
Petitioner's family retained an attorney to investigate grounds to challenge the delinquency proceedings. On December 27, 2007, the retained attorney learned from the attorney of record representing petitioner in the delinquency proceedings that "sentencing was calendared for that day." The retained attorney incorrectly determined that Tuesday February 26, 2008 was the last day to file a notice of appeal based upon his mistaken belief that courts were closed on Monday February 25, 2008 for a court holiday. The attorney subsequently determined there were grounds for appeal. The attorney's mother suffered a stroke in January 2008, which added stress to his professional and personal life and contributed to his failure to correct his mistaken determination as to the final day to file a notice of appeal. In the middle of February, the attorney assured petitioner's stepfather that he would file the notice of appeal. The notice of appeal was filed on February 26, 2008, one day late.
The last day to file a notice of appeal was Monday February 25, 2008. (Cal. Rules of Court, rules 8.400(d), 8.60(a) and (d); Code Civ. Proc., §§ 12, 12a, subd. (a), 12b, 135; Gov. Code, § 6700, subd. (e).)
The Sixth District Appellate Program (SDAP) was appointed to represent petitioner on appeal. The SDAP staff attorney supervising the case and associated counsel representing petitioner became aware of the untimely filing of the notice of appeal only after the defect was raised in respondent's brief. Appellate counsel filed an application for relief from default for failure to timely file a notice of appeal, which was denied. This court dismissed the appeal as untimely filed on November 12, 2008.
B. Analysis
An individual lawfully in custody may properly use a petition for writ of habeas corpus to seek relief from default in perfecting an appeal. (See In re Serrano, supra, 10 Cal.4th at p. 454.) The federal constitutional guarantee of effective assistance of counsel applies without regard to whether counsel is retained or appointed and on appeal as well as at trial. (See Evitts v. Lucey (1985) 469 U.S. 387, 392-400 [105 S.Ct. 830] [right to effective assistance of counsel in first appeal as of right].) A claim of ineffective assistance of counsel pursuant to Strickland v. Washington (1984) 466 U.S. 668, 687, 692 [104 S.Ct. 2052] requires a showing that counsel's performance was deficient and resulted in prejudice.
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. [Citations.]" (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477 [120 S.Ct. 1029] [question presented was whether counsel was "deficient for not filing a notice of appeal when the defendant ha[d] not clearly conveyed his wishes one way or the other"].) "[A] defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes." (Ibid.) In this case, counsel missed the filing deadline based upon his erroneous belief that courts were closed on Monday February 25, 2008 and the last day to timely file was Tuesday February 26, 2008. Counsel's performance fell below professional norms.
Although prejudice is presumed in certain contexts not before us (see Strickland v. Washington, supra, 466 U.S. at p. 692; Roe v. Flores-Ortega, supra, 528 U.S. at p. 483), ordinarily an appellant with appellate counsel must satisfy both prongs of the Strickland test in order to prevail on his claim of ineffective assistance of appellate counsel. (See Smith v. Robbins (2000) 528 U.S. 259, 284-289 [120 S.Ct. 746] [claim that appellate counsel erroneously failed to file a merits brief].) Where a counsel's deficient performance results in forfeiture of an appeal, "which a defendant wanted at the time and to which he had a right," prejudice may be established. (Roe v. Flores-Ortega, supra, 528 U.S. at p. 483.) "[T]he critical requirement [is] that counsel's deficient performance must actually cause the forfeiture of the defendant's appeal. If the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief. [Citation.]" (Id. at p. 484 [To show prejudice, the defendant was required to "demonstrate that there [was] a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed"].) "[W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." (Ibid.)
The requirement of prejudice was satisfied here where petitioner pursued an appeal, which was dismissed as untimely due to retained counsel's failure to timely file the notice of appeal.
C. Conclusion
Habeas corpus relief is granted. This court's November 12, 2008 order dismissing petitioner's appeal in Case No. H032659 is vacated, the remittitur in that case is recalled, and the appeal is reinstated. This court will consider the appellate briefs previously filed.
WE CONCUR: PREMO, Acting P.J., DUFFY, J.