Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County No. 99HF0194, Patrick Donahue, Judge. Petition granted.
Anita P. Jog for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.
OPINION
Before Rylaarsdam, Acting P. J., Moore, J., and Ikola, J.
Petitioner Chrysanthus Mordecai Thomas was sentenced to 11 years in prison for voluntary manslaughter, along with a consecutive term of 10 years for a firearm enhancement. After discussing his appellate rights with trial counsel, petitioner mailed a notice of appeal to the superior court. On the front of the envelope he wrote “legal mail,” and on the back he wrote “legal mail date 15 Jan 08.” January 15, 2008 was the last day on which to file an appeal. The envelope attached to the petition reflects it was postmarked January 21, 2008, and a superior court clerk stamp shows it was received January 23, 2008. The superior court clerk refused to file the notice of appeal, however, deeming it untimely. This petition for relief was then filed. (In re Benoit (1973) 10 Cal.3d 72.)
The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.
California Rules of Court, rule 8.308(e) provides: “If the superior court clerk receives a notice of appeal by mail from a custodial institution after the period specified in (a) [which subsection provides that a notice of appeal must be filed within 60 days of the rendition of the judgment] has expired but the envelope shows that the notice was mailed or delivered to custodial officials for mailing within the period specified in (a), the notice is deemed timely.” We cannot fault the superior court clerk for refusing to file the notice of appeal. Nothing on the face of the envelope shows any markings indicating it had been delivered to custodial officials.
Relief is still warranted here, however. Petitioner attaches to his petition a declaration wherein he states: “On January 15, 2008, the 60-day deadline, I sent the notice of appeal to jail officials for mailing. I wrote the date on the envelope.” The handwritten markings on the front and back of the envelope support his assertion, and the Attorney General does not dispute his claim. Accepting his assertion as true, then, it would be anomalous for the State to deem petitioner’s notice untimely merely because a custodial official of the State failed to place an identifying mark on the envelope indicating when it was delivered to custodial officials.
Good cause appearing, and the Attorney General having effectively waived the necessity of issuing an order to show cause, the petition for relief is granted. On petitioner’s behalf, attorney Anita P. Jog is directed to prepare and file a notice of appeal in Orange County Superior Court case number 99HF0194, and the clerk of the superior court is directed to accept the notice for filing, if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.