Opinion
G045946 Super. Ct. No. 08NF0063
12-15-2011
In re ROBERT HOWELL CRANDALL on Habeas Corpus.
Appellate Defenders, Inc., and Lynelle K. Hee for Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Julie L. Garland, Assistant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Thomas M. Goethals, Judge. Petition granted.
Appellate Defenders, Inc., and Lynelle K. Hee for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Julie L. Garland, Assistant Attorney General, for Respondent. THE COURT:
Before Rylaarsdam, Acting P.J., Bedsworth, J., and Fybel, J.
Petitioner, Robert Howell Crandall, seeks relief from the failure to file a timely notice of appeal from his criminal conviction. On September 26, 2008, Crandall pleaded guilty to one count of possession of a controlled substance and one count of unauthorized possession of a hypodermic needle or syringe as a misdemeanor. Crandall also admitted three prior convictions for drug related offenses. On September 26, 2008, the court suspended execution of an eight year prison sentence, placed Crandall on 3 years' formal probation, and ordered him to complete one year in a state licensed and probation approved residential drug treatment program in lieu of jail. On February 4, 2011, Crandall admitted he violated his probation and the court imposed his 8-year prison sentence.
Crandall informed his attorney, Edwin E. Printemps, he wanted to appeal. Printemps assured him he would file a notice of appeal on Crandall's behalf and filed one on April 4, 2011. The statutory 60-day period within which to file a timely notice of appeal expired on April 4, 2011. However, Printemps only checked the box challenging "the validity of the plea or admission" and requested a certificate of probable cause on the notice of appeal. The court denied the request and marked the notice of appeal "inoperative."
The Attorney General was invited to file an informal response to the petition. She advises us she does not oppose the petition. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)
The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant requests trial counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney who has been asked to file a notice of appeal on behalf of a client has a duty to file a proper notice of appeal. (Pen. Code, § 1240.1, subd. (b).) Here, Crandall's reasonable reliance on the promise of trial counsel to file a timely and proper notice of appeal entitles him to the relief requested because Crandall's attorney could have filed an operable notice of appeal if only he had checked off multiple bases for the appeal.
The petition is granted. On Crandall's behalf, Attorney Lynelle K. Hee is directed to prepare and file a notice of appeal in Orange County case number 08NF0063 and the Clerk of the Superior Court is directed to accept the notice for filing if presented within 30 days of this opinion becoming final. Further proceedings, including the preparation of the record on appeal, are to be conducted according to the applicable rules of court. In the interest of justice, the opinion in this matter is deemed final forthwith.