In re Nguyen
Filed 5/18/07 In re Nguyen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re LUONG NGUYEN on Habeas Corpus. | G038198 (Super. Ct. No. 04WF0673) O P I N I O N |
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, William Froeberg, Judge. Petition granted.
Frederick L. McBride for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Deputy Attorney General, for Respondent.
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THE COURT: *
This court dismissed Luong Nguyens appeal before receiving counsels request for and extension of time to file appellants opening brief. By the time counsel realized the court had not received his request to reinstate the appeal, the dismissal had become final. Nguyen is asking the court to recall the remittitur, set aside the dismissal and reinstate the appeal. The Attorney General does not oppose Nguyens application for relief. The petition is granted.
According to counsel, he was retained to represent Luong Nguyen on appeal, which included filing the notice of appeal and all necessary documents and briefs. According to counsels declaration, soon after receiving the record from the Public Defenders Office in October 2006, he also received a letter from the court advising him that pursuant to California Rules of Court, rule 17(a)(1)[1], the opening brief was due November 30. Although counsel mailed a request on November 28, for an extension of time to file the opening brief, he was advised by the court clerk that the appeal had been dismissed on December 1 without having received and/or acted upon [the] request for an extension of time.
As a result, on December 12, counsel mailed a request to reinstate the appeal and for a further extension of time to file appellants opening brief. Although the Attorney General acknowledges receiving this document, counsel did not realize until January 10, 2007, that this courts docket did not reflect the request had ever been received, and the courts order dismissing the appeal had become final pursuant to rule 8.264(b). On January 24, counsel mailed the opening brief with a second request to reinstate the appeal. On January 25, counsel was notified that the dismissal order had become final and the opening brief and request to reinstate the appeal was being rejected on the basis that the court had lost jurisdiction. Counsel filed this petition for a writ of habeas corpus asking the court to recall the remittitur, which was due to issue February 5, and reinstate the appeal on the basis that [t]he dismissal of the appeal is solely to be attributed to petitioners attorneys failure in not investigating the lack of response by this court to the first motion to reinstate the appeal sent in December, and his attorneys failure to not file the first request for extension in sufficient time so as not to cause the dismissal in the first place. Even though the petition was filed on February 5, the remittitur had already issued earlier in the day.
Although the general rule is that an appellate court loses all control and jurisdiction over a cause after remittitur has been issued, (In reMartin (1962) 58 Cal.2d 133, 138) the District Court of Appeal does retain some vestige of jurisdiction, even after the remittitur has gone down. (Ibid.) Rule 8.272(c)(2), (formerly rule 25(d)) provides that [o]n a partys or its own motion or on stipulation, and for good cause, the court may stay a remittiturs issuance for a reasonable period or order its recall. Martin acknowledges from past decisions that the extraordinary remedy by motion to recall the remittitur may be invoked only in cases of fraud or imposition practiced upon the court or upon the opposite party, or where the judgment was based on a mistake of fact or occurred through inadvertence. (In reMartin, supra, 58 Cal.2d at p. 139.) (Emphasis omitted.)
In this case, counsel blames himself for not investigating the lack of response from this court as an indication that the court had not received the request to reinstate the appeal. It is clear that counsels inadvertent failure to verify that the request had been filed by the court inadvertently led to the dismissal of the appeal. In light of the facts and [t]he policy of appellate courts, [which] of course, is to hear appeals upon the merits and to avoid, if possible, all forfeiture of substantial rights upon technical grounds[,][citation] the petition is granted. (In reMartin, supra, 58 Cal.2d at p. 139.)
The clerk of the court is directed to recall the remittitur issued on February 5, 2007, vacate the courts order dismissing the appeal, and reinstate the appeal. (Cal. Rules of Court, rule 8.60(d).) Appellants opening brief shall be filed within 30 days from the date of this order. This opinion is final as to this court forthwith.
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*Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
[1]All further references are to the California Rules of Court.
