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In re De La Garza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 14, 2012
F063950 (Cal. Ct. App. Feb. 14, 2012)

Opinion

F063950

02-14-2012

In re MONICA DE LA GARZA, On Habeas Corpus.

Monica De La Garza, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 County Superior Court

No. F11902372)


OPINION


THE COURT

Before Gomes, Acting P.J., Kane, J., and Poochigian, J.

ORIGINAL PROCEEDING; petition for writ of habeas corpus.

Monica De La Garza, in pro. per., for Petitioner.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

STATEMENT OF FACTS

In a petition for writ of habeas corpus filed on January 6, 2012, Monica De La Garza (petitioner) raises issues regarding her failure to timely file a notice of appeal after the Fresno County Superior Court rendered judgment in its case No. F11902372 on September 28, 2011. Petitioner claims her trial counsel failed to file the notice of appeal as promised.

DISCUSSION

A notice of appeal must be filed within 60 days of 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).)

Further statutory references are to the Penal Code unless otherwise stated.
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The Fresno County Superior Court convicted petitioner of second-degree robbery with a firearm enhancement and sentenced her to a three-year prison term on September 28, 2011. (§§ 211, 12022, subd. (a)(1).) To appeal the matter, petitioner was therefore required to file a notice of appeal in the trial court no later than November 28, 2011, but it was not received by the trial court until seven days later on December 5, 2011.

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.) Moreover, appointed defense counsel has a statutorily imposed duty to "execute and file" a timely notice of appeal where "arguably meritorious grounds exist for a reversal or modification of the judgment." (§ 1240.1, subd. (b).)

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 defendant's behalf. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.) The doctrine protects defendants who have been "lulled into a false sense of security" by counsel's promise. (Id. at p. 87.) 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 also In re Benoit, supra, 10 Cal.3d at p. 89.)

In petitioning this court, petitioner declares under penalty of perjury that she "requested counsel to file a notice of appeal, but it was not filed within 60 days from the date of sentencing." Trial counsel of record similarly declares that petitioner asked her to file an appeal on September 28, 2011, that counsel prepared and signed the notice of appeal on September 29, 2011, but that it mistakenly was not filed until December 5, 2011. Another attorney in trial counsel's firm also declares that after receiving correspondence from petitioner inquiring about her appeal on December 5, 2011, he discovered a previously prepared -- but unfiled -- notice of appeal in petitioner's file. This court views the admitted delay in filing the notice of appeal as the result of counsel's inadvertence or clerical error.

On January 12, 2012, this court invited the Attorney General to file a response to the petition for writ of habeas corpus. The Attorney General answered that, "In light of the declarations from trial counsel, respondent does not oppose the immediate issuance of an order granting relief from default without further proceedings."

DISPOSITION

Petitioner is directed to cause a notice of appeal to be filed on or before 30 days from the filing date of this opinion in Fresno County Superior Court action No. F11902372.

Let a writ of habeas corpus issue directing the Clerk of the Fresno County Superior Court to file petitioner's notice of appeal if received within 30 days from the date of the filing of this opinion, to treat it as being timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable California Rules of Court.


Summaries of

In re De La Garza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 14, 2012
F063950 (Cal. Ct. App. Feb. 14, 2012)
Case details for

In re De La Garza

Case Details

Full title:In re MONICA DE LA GARZA, On Habeas Corpus.

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 14, 2012

Citations

F063950 (Cal. Ct. App. Feb. 14, 2012)