Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Ralph Gonzalez, in pro. per., for Petitioner.
Kamala D. Harris and Edmund G. Brown Jr., Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J., and Kane, J.
Petitioner seeks a belated appeal from a conviction and sentence on November 24, 2008, to 28 years to life. The petition includes what appears to be a letter from the sentencing judge which states in pertinent part as follows:
“I am aware that I asked your trial defense counsel to file a notice of appeal on your behalf when you were sentenced on November 24, 2008, and that he agreed to do so.”
Petitioner has provided a portion of the sentencing transcript which corroborates the letter. In addition, petitioner makes repeated assertions that at the time of sentencing “I verbally acknowledged my desire to appeal” and “During sentencing petitioner made it known to the court and to trial counsel to file an appeal the date of sentencing November 24, 2008...”
We conclude that petitioner makes an adequate showing that there was a constructive filing of a notice of appeal (NOA) at the time of sentencing.
In re Anderson (1971) 6 Cal.3d 288 (Anderson), requires that even though a defendant constructively filed an appeal--either through his own efforts or by requesting his attorney to file an appeal--that defendant is not entitled to a belated appeal unless he explains any significant delay in discovering that no appeal was filed and in seeking relief in the courts. The opinion states that:
“We are compelled to the conclusion, on the entire record, that except for a one-month period during a total of at least nine months, and more likely eleven months, petitioner was under no disability which reasonably could have precluded an application for [a belated appeal].” (Id. at p. 296.)
Anderson held that the delay following the expiration of the time for filing a NOA and termination of all disabilities was unexcused and constituted a waiver of the defendant’s right to belated appeal.
Petitioner was sentenced on November 24, 2008. The 60-day time limit for filing a NOA expired on January 23, 2009. At some point in time, petitioner sent a letter to the Central California Appellate Program (CCAP); CCAP responded on April 10, 2009, providing instructions on how petitioner should file a petition for writ of habeas corpus in this court. It follows that petitioner delayed less than 2 1/2 months after January 23, 2009, to seek assistance in perfecting an appeal.
Petitioner could not have known that an appeal had not been timely filed until after the time expired on January 23, 2009. He also had to inquire as to the status of his appeal and await the response informing him that no appeal had been filed. In addition, he was incarcerated and ignorant of his remedies and the procedures used by courts. Finally, petitioner claims he is “functionally illiterate” and required the assistance of other inmates to prepare his letters and pleadings.
We conclude that the delay of less than 2 1/2 months until he sent his inquiry to CCAP was not an inexcusable delay under Anderson.
The Attorney General asserts that petitioner’s failure to comply with the directions in CCAP’s letter of April 4, 2009, until he filed his writ in this court on June 16, 2009, should be deemed inexcusable because that letter directed him to file in this court. The Attorney General argues that his other efforts and letters to the county clerk and other agencies in violation of CCAP’s guidance render that delay inexcusable.
Petitioner’s efforts after CCAP’s letter were obviously intended to be attempts to file a late notice of appeal more directly and expeditiously than filing a writ in this court. Those efforts were not unreasonable given petitioner’s ignorance of the law and procedures and his “functional illitera[cy]”.
We conclude that petitioner did not unreasonably delay in perfecting an appeal within the meaning of Anderson (1971) 6 Cal.3d 288.
Petitioner was convicted after trial by jury. Thus, a record of the prosecution’s case is available. Moreover, the Attorney General does not assert that granting a belated appeal would cause any prejudice to the strength of the prosecution's case against petitioner. The delay caused by the Attorney General’s challenges to the factual showing by petitioner and petitioner’s attempts to provide a more adequate factual context should not weigh against petitioner’s entitlement to relief.
On February 3, 2011, this court filed an order which stated that this court was prepared to submit this action based on the existing pleadings, gave the Attorney General 10 days to respond, and stated that the failure to file a response would be deemed agreement that a decision could be rendered without any further proceedings such as an order to show cause, the filing of a return or oral argument. The Attorney General did not file a response.
Let a writ of habeas corpus issue directing the Merced County Superior Court Clerk to file in LBR11636 the notice of appeal received from appellant on or about April 21, 2009, to treat that notice as timely filed, and to proceed with the preparation of the normal record on appeal in accordance with the applicable rules of the California Rules of Court.