In
re Byrd

 

 

Filed
7/18/14  In re Byrd 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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	F068490
KENNETH A. BYRD,             On Habeas Corpus.	(Kings County Sup. No. 13CM0784)   >OPINION

 

THE COURThref="#_ftn1" name="_ftnref1" title="">*

            ORIGINAL
PROCEEDINGS; petition for writ of habeas
corpus. 

Kenneth A. Byrd, in pro. per. 

Kamala D. Harris, href="http://www.mcmillanlaw.us/">Attorney General, Michael P. Farrell,
Senior Assistant Attorney General, Kathleen A. McKenna and Leanne Le Mon, Deputy
Attorneys General.

-ooOoo-

STATEMENT OF FACTS

            On December
10, 2013, appellant filed in this court a petition for writ of habeas corpus
that raises issues regarding his counsel’s failure to timely file a href="http://www.mcmillanlaw.us/">notice of appeal from his felony
conviction in Kings County Superior Court case number 13CM0784.  The conviction followed petitioner’s entry of
a guilty plea.           

            Petitioner asserts
that his trial counsel promised to timely file a notice of appeal on his behalf
but failed to follow through on that promise. 
Petitioner was diligent in his efforts to learn whether the notice had been
filed and, once he discovered it had not been filed, his efforts to learn what
had to be done to seek relief from trial counsel’s failure.

            The href="http://www.fearnotlaw.com/">Attorney General has no objection to this
Court granting petitioner the limited relief sought.

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.)  And in an appropriate case,
this court can grant a petitioner relief from trial counsel’s failure 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.)

            Our high
court has “long . . . recognized a ‘well-established policy, based upon the
remedial character of the right of appeal, of according that right in doubtful
cases “when such can be accomplished without doing violence to applicable
rules.”‘ [Citation.] ‘[T]here are many cases in which this policy, implemented
in accordance with “applicable rules,” will lead to a determination, based on
construction and interpretation, that timely and proper notice of appeal must
be deemed in law to have been filed within the jurisdictional period.’
[Citation.] Although adhering to the established rule that the time for filing
a notice of appeal is jurisdictional, these decisions seek to alleviate the
harshness of the rule’s application in certain compelling circumstances by
holding that an appellant’s efforts should be deemed to be a constructive filing of the notice within the
prescribed time limits. ([Benoit,
supra,] 10 Cal.3d [at pp.] 83–84 …; see also Hollister [Convalescent
Hosp., Inc. v. Rico (1975)] 15 Cal.3d [660,] 669–670 [noting that our constructive-filing decisions reflect
application of ‘principles of construction and interpretation in a manner consistent
with the policy … of granting the right of appeal in doubtful cases’ while ‘steadfastly
adher[ing] to the fundamental precept that the timely filing of an appropriate
notice of appeal or its legal equivalent is an absolute prerequisite to the
exercise of appellate jurisdiction’].)  The
classic example of the application of this policy is the determination that a
notice of appeal was timely filed under the prison-delivery rule.”  (Silverbrand
v. County of Los Angeles (2009) 46 Cal.4th 106, 113-114.) >

            When
applicable, the doctrine of constructive filing allows an untimely filed notice
of appeal to be deemed timely if the defendant relied on 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 on
petitioner’s behalf.  There is nothing
before us to show counsel advised petitioner to file the document himself.  (In re
Chavez (2003) 30 Cal.4th 643, 658 & fn.7.) 

DISPOSITION

            Petitioner
is directed to cause a notice of appeal to be filed in Kings County Superior
Court action No. 13CM0784 on or before 30 days from the date of filing of this
opinion.

            Let a writ
of habeas corpus issue directing the Clerk of the Kings County Superior Court,
if he receives said notice and request on or before 30 days from the date of
filing of this opinion, to file the notice 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.