Opinion
F077315
06-14-2018
In re WILLIAM D. JOHNSON III, On Habeas Corpus.
William D. Johnson III, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
ORDER MODIFYING OPINION
[No Change in Judgment]
THE COURT:
On the court's own motion, it is hereby ordered that the unpublished opinion filed herein on June 14, 2018, be modified as follows:
1. On page 3, the second paragraph is deleted and replaced with the following:
Let a writ of habeas corpus issue directing the Clerk of the Kern County Superior Court, within 30 days after the remittitur issues in this action, to file said notice of appeal in action No. BF168908B, to deem said notice to be 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.
Nothing in this order changes the judgment filed on June 14, 2018. (Cal. Rules of Court, rule 8.264(c).)
POOCHIGIAN, A.P.J. WE CONCUR: DETJEN, J. SMITH, J. NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF168908B)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. William D. Johnson III, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
Before Poochigian, A.P.J., Detjen, J., and Smith, J. --------
-ooOoo-
Petitioner William D. Johnson III seeks permission to file a belated notice of appeal by way of a petition for writ of habeas corpus. This court grants petitioner's request.
Petitioner was sentenced on August 29, 2017, for a violation of Health and Safety Code section 11379. Two three-year enhancements were imposed pursuant to Health and Safety Code section 11370.2.
Senate Bill No. 180 became effective on January 1, 2018, which amended Health and Safety Code section 11370.2 to eliminate certain prior convictions from being used as enhancements.
On April 12, 2018, petitioner filed this petition seeking a belated appeal. The petition asserts that trial counsel was ineffective for not informing petitioner that the law would change, and petitioner did not learn of the amendment to Health and Safety Code section 11370.2 until after it became effective.
On April 27, 2018, this court issued an order granting the Attorney General leave to file an informal response. The order stated that "[t]he failure to file a response shall be deemed agreement that petitioner should be granted a belated appeal without further proceedings. (People v. Romero (1994) 8 Cal.4th 728.)"
On May 29, 2018, the Attorney General filed an informal response, which stated in pertinent part:
"On April 9, 2018, petitioner filed in this Court a petition for writ of habeas corpus requesting that he be granted a belated notice of appeal from the judgment the superior court imposed on August 29, 2017. Specifically, petitioner argues that his trial counsel rendered ineffective assistance by failing to inform him that a new version of Health & Safety Code section 11370.2 would reduce penalties for violations of that section starting January 1, 2018. [Citation.] Petitioner claims that, had he been informed of the impending change of law, he would have filed an appeal to take advantage of the reduction to his sentence. [Citation.] Respondent does not oppose this court granting petitioner a belated notice of appeal. [¶] ... [¶]
"[P]etitioner's allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)"
Pursuant to the concession by the Attorney General, it is appropriate to grant petitioner a belated appeal.
DISPOSITION
The Clerk/Executive Officer of this court is directed to send a copy of the notice of appeal, which is attached to the petition in the above entitled action, to the Kern County Superior Court.
Let a writ of habeas corpus issue directing the Clerk of the Kern County Superior Court to file said notice of appeal in action No. BF168908B, to deem said notice to be 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.
Insofar as the petition may be requesting relief in addition to that granted above, such requests are denied.