In re Dambra
Filed 9/12/13 In re Dambra 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 KELLY RONALD DAMBRA
on Habeas
Corpus.
G048930
(Super. Ct.
No. 12NF1885)
O P I N I O
N
Original proceedings;
petition for a
habeas corpus to file a timely notice of appeal. Petition granted.
Appellate Defenders,
Inc., and Patrick DuNah for Petitioner.
Kamala D. Harris,
Attorney General, and Julie L. Garland, Assistant Attorney General for
Respondent.
* * *
THE
COURT:
Petitioner, Kelly Ronald
Dambra, seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a jury trial,
Dambra was convicted of two counts of second
degree robbery. A five-year
enhancement for a prior serious felony conviction was also found true and on March 29, 2013, Dambra was sentenced
to a total of seven years in prison. On June 26, 2013, counsel filed a notice
of appeal in superior court case number 12NF1885. This court advised Dambra that it was
considering dismissing the appeal on the basis that the appeal was
untimely. In lieu of filing a petition
for writ of habeas corpus, counsel filed a “motion to request constructive
filing of [the] notice of appeal.†In
support of the motion, counsel prepared a declaration stating that Dambra
wanted to appeal the verdict, and he advised Dambra that he would file a notice
of appeal on his behalf. According to
counsel, Dambra relied on his assurance that he would file a timely notice of
appeal, but he inadvertently failed to file the
date of the sentencing hearing.
The principle of
constructive filing of the notice of appeal should be applied in situations
where trial counsel advises a criminal defendant that he will file a notice of
appeal on his client’s behalf, and then fails to do so in accordance with the
law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney is under a
duty to either file the notice of appeal, or tell the client how to file it
himself. In this case, Dambra relied on
trial counsel to file a timely notice of appeal on his behalf. His reasonable reliance on counsel to file a
timely notice of appeal entitles him to the relief requested.
Because the
jurisdictional requirement to file a timely notice of appeal cannot be cured by
motion, the court advised the parties that it is considering treating the
motion as a petition for writ of habeas corpus.
The Attorney General does not oppose granting the petition without the
issuance of an order to show cause. (
On the court’s own
motion and for good cause, the court treats the motion to request constructive filing
of the notice of appeal as a petition for writ of habeas corpus, (
Rehabilitation (2006) 141 Cal.App.4th 498; People v. Picklesimer (2010) 48 Cal.4th 330, 345) and the petition
is granted. The stay previously issued
is DISSOLVED. Further proceedings,
including the preparation of the record on appeal, are to be conducted
according to the applicable rules of court.
In the interest of justice, the
opinion in this matter is deemed final as to this court forthwith.
and Ikola, J.
