Opinion
F085224
07-06-2023
In re JOHNNIE ALBERT BENNETT, On Habeas Corpus.
Johnnie Albert Bennett, in pro. per., for Petitioner. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Juliet L. Boccone, Judge.
Johnnie Albert Bennett, in pro. per., for Petitioner.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
THE COURT [*]
Petitioner Johnnie Albert Bennett seeks to file a belated notice of appeal by way of a petition for writ of habeas corpus. We issued the People an order to show cause as to why we should not grant the petition. The People declined to show cause. Because petitioner has made a prima facie showing for relief and the People declined to show cause as to why such relief should not be granted, we grant the request.
PROCEDURAL AND FACTUAL SUMMARY
In 2010, petitioner was convicted in Tulare County case No. VCF230530 of murder (Pen. Code, § 187, subd. (a)). Petitioner appealed the conviction. We affirmed the judgment. (People v. Bennett (Aug. 9, 2011, F060576) [nonpub opn.].)
All further references are to the Penal Code.
Case No. F060576.
In 2021, we reversed the trial court's order denying his request for resentencing under section 1170.95. We remanded the matter for further reconsideration by the trial court. (People v. Bennett (May 12, 2021, F080439) [nonpub opn.].)
Case No. F080439.
On October 22, 2021, the trial court denied petitioner's request for resentencing, stating section 1170.95 was inapplicable to his case.
On June 14, 2022, defendant filed a habeas petition requesting permission to file a belated notice of appeal from the trial court's October 22, 2021 order. On September 1, 2022, we denied the petition without prejudice due to an inadequate record. (In re Johnnie Albert Bennett (Sept. 1, 2022, F084467) [nonpub. order].)
Case No. F084467.
On November 8, 2022, petitioner filed the instant habeas petition, renewing his contention that he was entitled to file a belated notice of appeal from the order filed on October 22, 2021.
On February 17, 2023, we granted respondent leave to file an informal response to the petition. On March 9, 2023, respondent filed an informal response.
On March 27, 2023, we issued respondent an order to show cause. On April 25, 2023, respondent filed a return, declining to show cause. On June 1, 2023, petitioner responded that he would not be filing a reply brief in light of respondent declining to show cause.
DISCUSSION
Petitioner filed the instant habeas petition, seeking relief from his default for failing to file a notice of appeal within 60 days of the trial court's October 22, 2021 order. After receiving the People's informal response, we issued an order to show cause. Respondent declined to show cause as to why the petition should not be granted. Accordingly, we conclude petitioner may file a belated notice of appeal from the trial court's denial of his resentencing request pursuant to section 1170.95 in Tulare County case No. VCF230530.
A. Background
Petitioner seeks permission to file a belated notice of appeal due to defense counsel's failure to preserve his appellate rights under the constructive filing doctrine in In re Benoit (1973) 10 Cal.3d 73. Petitioner declares, under penalty of perjury, that he was unaware of the October 22, 2021 order because defense counsel failed to follow through on his commitment to file an appeal on his behalf. He asserts that defense counsel failed to notify him either before or after the October 22, 2021 hearing on the section 1170.95 resentencing matter.
Upon review of the petition and supporting documents, we issued an order directing the People to file an informal response to petitioner's claim and advised that failure to do so would be deemed agreement that petitioner should be granted a belated appeal.
The People filed an informal response, asserting the petition should be denied because it was untimely and failed to demonstrate a reason for petitioner's delay in seeking relief between the time he learned he was absent at the October 22, 2021 hearing and the time he filed the instant petition on November 8, 2022. The People argued that petitioner appeared to become aware of his absence at the October 22, 2021 hearing via a February 2022 letter the public defender's office sent him but petitioner did not file the instant petition until several months later.
The People's informal response did not mention petitioner's June 14, 2022 habeas petition, which we denied without prejudice due to an inadequate record.
We issued an order to show cause, inviting the People to show cause as to why the petition should not be granted. The return states that the People "decline[] to show cause." Petitioner declined to file a reply brief in light of the People declining to show cause.
B. Law
"The writ of habeas corpus may be used by a defendant ... to seek relief from default in perfecting an appeal." (In re Serrano (1995) 10 Cal.4th 447, 454 (Serrano).)
"[A]n order to show cause why the relief sought in the petition should not be granted ... signifies our 'preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle the petitioner to habeas corpus relief under existing law.'" (Serrano, supra, 10 Cal.4th 447 at pp. 454-455.)" '[T]he issuance of the order to show cause creates a "cause" giving the People a right to reply to the petition by a return and to otherwise participate in the court's decisionmaking process. [Citation.] It is the interplay between the return and the petitioner's response to the return in a pleading called the traverse, that frames the issues the court must decide in order to resolve the case. [Citations.]'" (In re Duval (2020) 44 Cal.App.5th 401, 406.)" 'The return, which must allege facts establishing the legality of the petitioner's custody, "becomes the principal pleading" [citation] and is "analogous to the complaint in a civil proceeding" [citations]. Thus, the return "is an essential part of the scheme" by which relief is granted in a habeas corpus proceeding. [Citation.]'" (Id. at p. 407.) "The traverse ... is analogous to the answer in civil actions[ and i]t is in this manner that the factual and legal issues are joined for review." (In re Sixto (1989) 48 Cal.3d 1247, 1252.) "As a result, an order to show cause 'serves only the limited function of requiring the filing of a return.' [Citations.] [¶] Thus, '[i]ssuance of an .. . [order to show cause] signifies the court's preliminary determination that the petitioner has pleaded sufficient facts that, if true, would entitle him to relief.'" (Duval, at p. 407.)
"If the People do not file a return, they forgo the opportunity to participate in the court's determination of the merits of the petitioner's claim. [Citation.] If ... the People indicate to the court that they do not oppose the relief sought by the petitioner, and if they decline to file a return in response to the order to show cause, then no disputed factual questions exist for resolution. Under these circumstances, it would be proper for the court to accept as true the petitioner's undisputed factual allegations in the absence of a reference hearing, and to decide the merits of the case accordingly." (Serrano, supra, 10 Cal.4th at p. 455.)
C. Analysis
Here, the People's return to the order to show cause simply states that they "decline[] to show cause," indicating they do not oppose the relief sought by the petitioner. As the People decline to show cause, "they forgo the opportunity to participate in the court's determination of the merits of the petitioner's claim." (See Serrano, supra, 10 Cal.4th 447 at p. 455.) Accordingly, no disputed factual questions exist and we accept the undisputed factual allegations of the petition as true.
The record here shows that petitioner acted with diligence to perfect his appellate right by seeking a belated appeal once he became aware that he was not present for the trial court's October 22, 2021 hearing. Petitioner filed his first habeas petition on June 14, 2022, which we denied without prejudice due to an inadequate record. (In re Johnnie Albert Bennett (Sept. 1, 2022, F084467) [nonpub. order].) This was only four months after learning in February 2022 he was not present at the October 22, 2021 hearing. The People appear to be unaware of petitioner's unsuccessful June 14, 2022 habeas petition, as it was not mentioned in their informal response where they disputed his diligence and asserted he waited several months from learning of his absence to file the instant habeas petition.
As the People decline to show cause as to why this petition should not be granted and petitioner has demonstrated an intent to file a timely appeal, petitioner is entitled to relief. We accept the petition for writ of habeas corpus filed on November 8, 2022.
DISPOSITION
Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order in Tulare County Superior Court case No. VCF230530.
Let a writ of habeas corpus issue directing the Clerk of the Superior Court of Tulare County to file a notice of appeal in its case No. VCF230530, to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives such a request within 60 days of the date of this opinion.
[*] Before Franson, Acting P. J., Smith, J. and DeSantos, J.