Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus, Super. Ct. No. 06CM4975
THE COURTJose F. Escalante, in pro. per. for Petitioner.
No appearance by Respondent.
OPINION
STATEMENT OF FACTS
In the petition for writ of habeas corpus filed on October 17, 2007, petitioner raises issues regarding his failure to timely file a notice of appeal from his multiple felony convictions in Kings County Superior Court. The convictions followed petitioner's jury trial. Petitioner was sentenced on May 14, 2007.
Petitioner claims that appointed trial counsel failed to timely file a notice of appeal on his behalf as promised.
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 default in timely filing 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.
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 from default 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 (1973) 10 Cal.3d 72, 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).)
On October 24, 2007, this court issued the following order:
“The Attorney General is granted leave to file within 15 days of this order, a response to the “Petition For Writ Of Habeas Corpus . . .,” filed on October 17, 2007. The failure to file a response shall be deemed to constitute a consent that, if this court determines upon the merits of said application that relief should issue, appropriate relief should issue without further proceedings. (People v. Romero (1994) 8 Cal.4th 728; In re Benoit (1973) 10 Cal.3d 72; People v. Ivester (1991) 235 Cal.App.3d 328, 338; People v. Grey (1990) 225 Cal.App.3d 1336, 1338-1440.)”
No response was filed by the Attorney General.
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.)
DISPOSITION
Petitioner is directed to cause a notice of appeal to be filed on or before January 2, 2008, in Kings County Superior Court action No. 06CM4975.
Let a petition for writ of habeas corpus issue directing the Clerk of the Kings County Superior Court, if he receives said notice and request on or before January 2, 2008, 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.