Opinion
F080420
02-21-2020
In re GARY BISHOP, On Habeas Corpus.
Gary Bishop, in pro. per. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F19904586)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Gary Bishop, in pro. per. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
Before Poochigian, Acting P.J., Franson, J., and Snauffer, J. --------
-ooOoo-
Gary Bishop (petitioner) seeks permission to file a belated notice of appeal by way of a petition for writ of habeas corpus, to challenge his conviction for unauthorized driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), with one prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
STATEMENT OF THE FACTS
In his petition, petitioner states he was coerced into accepting the plea agreement, and at the time of accepting the agreement was not on his schizophrenia medication and was under the influence of methamphetamine. After being sentenced on July 26, 2019, petitioner asserts his counsel visited him on August 29, 2019, and agreed to file an appeal on petitioner's behalf before the 60-day appeal deadline expired.
Petitioner contacted the Superior Court on November 5, 2019, and discovered no appeal was filed. On December 17, 2019, petitioner filed this petition for writ of habeas corpus requesting leave to file a belated appeal. On January 22, 2020, we issued an order granting the Attorney General leave to file a response. The Attorney General filed an informal response on February 13, 2020, conceding petitioner stated a prima facie case for relief from default.
DISCUSSION
A notice of appeal must be filed within 60 days after the judgment or order being appealed to confer appellate jurisdiction on this court. (Cal. Rules of Court, rule 8.308(a).) An appealable judgment in a criminal case is generally rendered at the time of sentencing. (Pen. Code, § 1237, subd. (a).)
A criminal defendant has the burden of timely filing a notice of appeal, but that burden may be delegated to counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant relied upon the promise of trial counsel to timely file the notice on the defendant's behalf and displayed diligence in seeing that his attorney has discharged this responsibility. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.) "A criminal defendant seeking relief from his default in failing to file a timely notice of appeal is entitled to such relief, absent waiver or estoppel due to delay, if he made a timely request of his trial attorney to file a notice of appeal, thereby placing the attorney under a duty to file it, instruct the defendant how to file it, or secure other counsel for him [citation]; or if the attorney made a timely promise to file a notice of appeal, thereby invoking reasonable reliance on the part of the defendant." (People v. Sanchez (1969) 1 Cal.3d 496, 500.) Reasonable doubts as to the veracity of a petitioner's allegations in these matters are to be resolved in favor of the petitioner to protect the right of appeal rather than forfeit it on technical grounds. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see In re Benoit, supra, 10 Cal.3d at p. 89.)
In petitioning this court, petitioner declares under penalty of perjury his trial attorney promised to file a notice of appeal within the 60-day filing window following his sentencing. After he did not receive confirmation an appeal was filed, petitioner states that he discovered an appeal was not filed on November 5, 2019, and promptly filed this petition requesting leave to file a belated appeal. The Attorney General concedes petitioner has stated a prima facie case for relief.
Based on petitioner's statement trial counsel agreed to file an appeal, we find petitioner diligently pursued his appeal by requesting his trial attorney file an appeal within the 60-day filing period, and by promptly filing this petition for writ of habeas corpus when he found out no appeal had been filed.
The entitlement to a belated appeal encompasses as complete an appeal as a defendant may be entitled to, which would include in this case the opportunity to file a request for a certificate of probable cause. (Cf. In re Jordan (1992) 4 Cal.4th 116, 131, fn. 9; In re Benoit, supra, 10 Cal.3d at pp. 86-87, 89; People v. Tucker (1964) 61 Cal.2d 828, 832); People v. Graff (1951) 104 Cal.App.2d 32, 34.)
Therefore, we grant petitioner's request to file a belated notice of appeal and certificate of probable cause, if necessary.
DISPOSITION
Petitioner is directed to file, on or before 60 days from the date of this opinion, a notice of appeal and request for a certificate of probable cause in Fresno County Superior Court case No. F19904586. (People v. Everett (1986) 186 Cal.App.3d 274, 281.)
Let a writ of habeas corpus issue directing the Clerk of the Fresno County Superior Court, if the notice and request are received on or before 60 days from the date of this opinion, to file the documents in Fresno County Superior Court action No. F19904586, to deem the documents to be timely filed, to cause the request for a certificate of probable cause to be brought before the superior court for a ruling pursuant to Penal Code section 1237.5, and to cause the normal record on appeal to be prepared, served on the parties and filed in this court in accordance with the applicable rules of the California Rules of Court.
This opinion is final forthwith as to this court.