Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus, (Super. Ct. No. VCF152279)
Michael B. Sheltzer, Public Defender, and David F. Rendahl, Deputy Public Defender, for Petitioner
No appearance for Respondent.
Before Ardaiz, P.J., Cornell, J., and Hill, J.
OPINION
STATEMENT OF FACTS
In the petition for writ of habeas corpus filed on August 29, 2008, petitioner raises issues regarding his failure to timely file a notice of appeal from his resentencing for a felony conviction in Tulare County Superior Court after this court affirmed the judgment on appeal in case No. F050910, vacated the sentence, and remanded the matter for resentencing only.
Petitioner claims the trial court failed to inform him of his appellate rights at the resentencing hearing (i.e., his right to appeal or inform him to timely file a notice of appeal on his own behalf). Counsel apparently did not file a notice of appeal either.
On September 10, 2008, the Attorney General was granted leave to file a response to the petition. No response was filed.
DISCUSSION
Judgment is rendered at the time it is orally pronounced. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Cal. Rules of Court, rule 8.308.) A criminal defendant has the burden of timely filing a notice of appeal, but the burden may be delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) However, this court is vested with discretion to grant a petitioner relief from failing to timely file a notice of appeal and/or request for certificate of probable cause as required under California Rules of Court, rules 8.304(b) and 8.308, and Penal Code section 1237.5. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.)
There has developed a judicial policy that reasonable doubts as to the veracity of a petitioner’s allegations in these matters are to be resolved in favor of the petitioner in order to protect the right of appeal, as well as the policy that this court's power to grant relief in these instances be liberally exercised so that in proper cases appeal rights will not be forfeited on technical grounds. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see also In re Benoit, supra, 10 Cal.3d at p. 89.) When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant has relied upon the promise of trial counsel to timely file the notice on defendant's behalf. (In re Benoit, supra, 10 Cal.3d at pp. 86-87.) The doctrine protects defendants who have been “lulled into a false sense of security” by trial counsel's promise. (Id. at p. 87.) In addition, appointed counsel in the trial court has a statutorily imposed duty to “execute and file” a timely notice of appeal where “arguably meritorious grounds exist for reversal or modification of the judgment.” (Pen. Code, § 1240.1, subd. (b).)
In the present case, trial counsel did not timely file a notice of appeal on petitioner’s behalf. Counsel likewise did not advise petitioner to file these documents himself. (In re Chavez (2003) 30 Cal.4th 643, 658 & fn.7.) In addition, the record demonstrates the superior court failed to inform petitioner of his appellate rights at resentencing. (Cal. Rules of court, rule 4.470; People v. Casillas (1964) 61 Cal.2d 344, 346; Castro v. Superior Court (1974) 40 Cal.App.3d 614, 619, 621.)
DISPOSITION
Petitioner is directed to cause a notice of appeal to be filed in Tulare County Superior Court action No. VCF152279, on or before 30 days from the date of the filing of this opinion.
Let a petition for writ of habeas corpus issue directing the Clerk of the Tulare County Superior Court, if she receives said notice on or before 30 days from the date of the filing of this opinion, to file the notice, to treat it as being 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.
In light of the disposition above, the “Request for Relief From Default Re: Notice of Appeal,” also filed August 29, 2008, is denied as moot.