In re Purdy
Filed 1/23/09 In re Purdy CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 KYLE GENE PURDY, On Habeas Corpus. | F056176 (Stanislaus Co. Super. Ct. No. 1085035) OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Kyle Gene Purdy, in pro per., for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Respondent.
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STATEMENT OF FACTS
In the petition for writ of habeas corpus filed on September 30, 2009, petitioner raises issues regarding his failure to timely file a notice of appeal from his 2007 felony convictions in Stanislaus County Superior Court. The convictions followed petitioner's entry of guilty pleas.
Petitioner claims appointed trial counsel failed to timely file a notice of appeal on his behalf. Petitioner also makes other claims of ineffective assistance of trial counsel. Petitioners desire to appeal was acknowledged by counsel at sentencing. At the change of plea, an appeal was also discussed.
On October 6, 2008, this court sent a letter to former trial counsel inviting counsel to file a declaration addressing the issues of ineffective assistance counsel contained in the petition. In addition to the letter, counsel was contacted by telephone and extensions of time were given. No declaration was filed.
On October 8, 2008, the Attorney General was granted leave to file a response to the petition. The response was filed on December 5, 2008.
We will grant the petition in part, and deny it in part.
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, 719.) However, this court is vested with discretion to grant a petitioner relief from failing to timely file 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. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.)
There has developed a judicial policy that reasonable doubts as to the veracity of a petitioners 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 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; see also In re Benoit, supra, 10 Cal.3d at p. 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 a 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 has not declared he advised petitioner to file these documents himself. (In re Chavez (2003) 30 Cal.4th 643, 658 & fn.7.)
DISPOSITION
Insofar as petitioner seeks to file a belated notice of appeal and request for certificate of probable cause, the petition is granted. In all other respects, the petition is denied. (People v. Duvall (1995) 9 Cal.4th 464, 474.)
On or before 30 days from the date of the filing of this opinion, petitioner is directed to cause a notice of appeal and request for certificate of probable cause to be filed in Stanislaus County Superior Court action No. 1085035.
Let a petition for writ of habeas corpus issue directing the Clerk of the Stanislaus County Superior Court, if he receives said notice and request on or before 30 days from the date of the filing of this opinion and request, to treat them as being timely filed, to cause the request to be ruled upon by the superior court, 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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* Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
