In re Lockett
Filed 9/27/11 In re Lockett CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| In re LAMONT D. LOCKETT, on Habeas Corpus. | F062773 (Super. Ct. Nos. F10904121 & F09906230) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Lamont D. Lockett, Petitioner, in pro per.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Leanne LeMon, Deputy Attorney General, for Plaintiff and Respondent.
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STATEMENT OF FACTS
In the petition for writ of habeas corpus filed on July 6, 2011, petitioner raises issues regarding his failure to timely file a notice of appeal from his felony conviction in Fresno County Superior Court. The convictions followed petitioner's jury trial.
Petitioner claims appointed trial counsel failed to timely file a notice of appeal on his behalf. Petitioner further claims he asked counsel to do so. Petitioner also attempted to file a notice of appeal, which would have been timely, but the notice was rejected as defective.
On July 12, 2011, this court invited appointed counsel to respond to the specific allegations in the petition. Counsel promptly responded by declaration filed August 3, 2011. In the declaration, counsel stated “it is totally conceivable that a written or verbal request may have been made by [petitioner] or someone communicating on his behalf … and that request may have inadvertently [been] misplaced by someone at [his] office.”
On August 26, 2011, this court directed the Attorney General to file a response to the petition. The response was filed on September 13, 2011. Focusing on petitioner’s timely effort to file a notice on his own behalf, the Attorney General agreed the petition should be granted.
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.) 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; 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).)
In the present case, trial counsel did not timely file a notice of appeal or request for certificate of probable cause 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.) More significantly, however, petitioner attempted to file a notice of appeal within 60 days of judgment.
DISPOSITION
Petitioner is directed to cause a notice of appeal to be filed on or before 30 days from the date of this opinion in Fresno County Superior Court case Nos. F10904121 and F09906230.
Let a petition for writ of habeas corpus issue directing the Clerk of the Fresno County Superior Court, if he or she receives said notice and request on or before 30 days from the date of this opinion, 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.
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