Opinion
E052535 Super.Ct.No. WHCSS1000158 Super.Ct.No. FWV802096
12-08-2011
In re MICHAEL FRACTIOUS, On Habeas Corpus.
Lynelle K. Hee, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Gary W. Schons, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 writ of habeas corpus. Petition granted.
Lynelle K. Hee, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, for Respondent.
STATEMENT OF THE CASE
On December 21, 2010, petitioner filed a petition for writ of habeas corpus seeking constructive notice of appeal pursuant to In re Benoit (1973) 10 Cal.3d 72, 86-89. On January 13, 2011, the Attorney General filed an informal response to the petition pointing out that, as part of his plea bargain, petitioner waived his right to appeal. On February 2, 2011, petitioner replied that the validity of the plea waiver could not be determined without review of the reporter's transcript of the hearing at which petitioner entered his plea. This court directed the superior court to prepare a copy of that reporter's transcript and allowed petitioner and the Attorney General to file supplemental pleadings. Petitioner merely submitted on the current pleadings, and the Attorney General continued to oppose the granting of the writ petition. On May 12, 2011, this court issued an order to show cause and allowed the Attorney General to file a return or to rely on its informal response. We noted that if no formal return was filed, the Attorney General would be deemed to have agreed that there are no material contested issues of fact, and that this court may grant relief without an evidentiary hearing. Petitioner filed a formal reply and noted that his waiver of right to appeal pertained to errors occurring before, but not after, the waiver. (People v. Mumm (2002) 98 Cal.App.4th 812, 815; People v. Vargas (1993) 13 Cal.App.4th 1653, 1662 [Fourth Dist., Div. Two].)
FACTS
In this case, petitioner pled nolo contendere pursuant to a plea bargain in which he waived his right to appeal "any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." Petitioner was then sentenced immediately after entering his plea on December 23, 2009, but issues regarding the amount of custody credits to be awarded and victim restitution to be paid were reserved for later hearing. On January 28, 2010, the superior court awarded custody credits and set a victim restitution amount. On February 25, 2010, the court appears to have modified the amount of the restitution fine pursuant to Penal Code section 1202.4.
After sentencing, petitioner asked his trial attorney to file a notice of appeal for him. Counsel told petitioner that he would have to do it himself but agreed to send a sample notice of appeal to petitioner in prison. Counsel did not file a notice of appeal or send a sample notice of appeal to petitioner. After doing research on his own, petitioner filed a petition for writ of habeas corpus with the superior court. The superior court denied the petition. Petitioner's sister then contacted Appellate Defenders, Inc. Petitioner cooperated with Appellate Defenders, Inc. in the preparation of the writ petition filed in this court.
DISCUSSION
Because no formal return was filed, there are no material contested issues of fact, and no evidentiary hearing is necessary. "It shall be the duty of every attorney representing an indigent defendant in any criminal . . . case to execute and file on his or her client's behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorney's judgment, it is in the defendant's interest to pursue any relief that may be available to him or her on appeal; or when directed to do so by a defendant having a right to appeal." (Pen. Code, § 1240.1, subd. (b), italics added; see also Roe v. Flores-Ortega (2000) 528 U.S. 470, 477 [120 S.Ct. 1029, 145 L.Ed.2d 985].) The Attorney General contests the fact that petitioner has "a right to appeal" because petitioner agreed to waive his right to appeal as part of his plea bargain and he was sentenced to the prison term to which he agreed.
As previously set out, petitioner did agree to a general waiver of the right to appeal. However, a defendant's general waiver of the right to appeal includes error occurring before, but not after, the waiver of the right to appeal. (People v. Mumm, supra, 98 Cal.App.4th at p. 815; People v. Vargas, supra, 13 Cal.App.4th at p. 1662.) In this case, petitioner was sentenced immediately after entry of his plea, but the issues regarding the amount of custody credits to be awarded and victim restitution to be paid were reserved for later hearing. Thus, these issues are not precluded by waiver, and petitioner does have a limited right to appeal in this case. (But see Pen. Code, § 1237.1 [issues regarding custody credits must be brought to the attention of the superior court first].)
DISPOSITION
The petition is grante`d. Petitioner may file a late notice of appeal on or before 20 days after the remittitur issues in this case, and it will be deemed timely under the constructive filing doctrine. (In re Benoit, supra, 10 Cal.3d at pp. 86-89.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Miller
Acting P.J.
We concur:
McKinster
J.
King
J.