Filed 5/1/15 In re Lucas 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



In re                                                                                   F070962

         JD DWAINE LUCAS,                                           (Stanislaus Super. Ct. Nos. 1458227,
                                                                            1454017 & 1454471)
                            On Habeas Corpus.
                                                                                      OPINION



                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for writ of habeas corpus.
         JD Dwaine Lucas, in pro. per., for Petitioner.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for
Respondent.
                                                        -ooOoo-
         Petitioner seeks permission to file a belated appeal by way of a petition for writ of
habeas corpus. We grant petitioner’s request for a belated appeal. Petitioner’s additional
habeas claims are denied without prejudice for consideration in the appeal.



*        Before Gomes, A.P.J., Poochigian, J., and Smith, J.
                                   STATEMENT OF CASE
       On September 11, 2014, petitioner was sentenced to 8 years 8 months for evading
a peace officer, grand theft auto, and having a prior prison term.
       Petitioner claims his sentence was illegally enhanced because the prior prison term
imposed belonged to his codefendant, not petitioner. Petitioner alleges he told counsel of
this error, but counsel stated the district attorney was correct in assigning the prior prison
term to petitioner.
       Petitioner claims he was discharged from parole on February 27, 2012, yet his
home was searched without a warrant on February 1, 2013. Petitioner presented this
information to counsel, but counsel said there was no violation of his rights.
       On September 11, 2014, the day of sentencing, petitioner “asked [his] attorney to
file an appeal based on the prison prior being not mine. He said he would.” On
December 20, 2014, over three months later, “[petitioner] made the assumption it hadn’t
been filed” and inquired of different law schools and the Central California Appellate
Program for help on how to file a notice of appeal. Petitioner does not claim he made
any effort to contact his attorney regarding the status of his appeal during those three
months.
       On February 17, 2015, petitioner filed a petition for writ of habeas corpus and
request to file a notice of appeal under the constructive filing doctrine in this court.
       On March 4, 2015, this court sent a letter to petitioner’s trial counsel, Stanislaus
County Public Defender Greg Spiering, giving him 30 days to respond to petitioner’s
ineffective assistance of counsel claims. Mr. Spiering has not responded.1
       On March 5, 2015, this court issued an order considering granting the petition for
writ of habeas corpus and allowed the Attorney General leave to respond.


1       The letter sent to Mr. Spiering states his response in the matter is optional, and this court
will draw no inferences if he declines to respond.

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        On March 25, 2015, the Attorney General filed an informal response informing
this court that it does not oppose petitioner’s request for a belated appeal.
                                       DISCUSSION
        “It shall be the duty of every attorney representing an indigent defendant in any
criminal, juvenile court, or civil commitment case to execute and file on his or her
client’s behalf a timely notice of appeal when the attorney is of the opinion that arguably
meritorious grounds exist for a reversal or modification of the judgment or orders to be
appealed from, and where, in the attorney’s judgment, it is in the defendant’s interest to
pursue any relief that may be available to him or her on appeal; or when directed to do so
by a defendant having a right to appeal.” (Pen. Code, § 1240.1, subd. (b), emphasis
added.)
        A notice of appeal must be filed within 60 days of the judgment or order being
appealed from. (Cal. Rules of Court, rule 8.308(a).) An appealable judgment in a
criminal case is generally rendered at the time of sentencing. (Pen. Code, § 1237, subd.
(a).)
        The doctrine of constructive filing is a “basis for judicial acceptance of an excuse
for the appellant’s delay [in filing a notice of appeal] in order to do justice.” (In re Benoit
(1973) 10 Cal.3d 72, 84 (Benoit).) The doctrine of constructive filing allows an untimely
filed notice of appeal to be deemed timely when a defendant relied upon the promise of
trial counsel to timely file the notice on defendant’s behalf and fails to do so. (Id. at pp.
86-87, 89.) The doctrine protects a defendant who has been “lulled into a false sense of
security in believing that an attorney—especially [his or her] trial attorney—will carry
out his undertaken task.” (Id. at p. 87.)
        Petitioner relied on trial counsel’s statement that counsel would file a timely notice
of appeal, and three months later, petitioner assumed counsel failed to do so. Petitioner
immediately sought help on how to file a notice of appeal, and two months later, filed his


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petition for writ of habeas corpus and request for constructive filing. Petitioner’s trial
counsel did not respond to petitioner’s claims and the Attorney General does not oppose
this issue.
The Other Hand of Benoit
       “On the other hand, in view of the ample time period and the advice he has
received under [California Rules of Court,] rule 250 [renumbered as 4.305], we will not
indiscriminately permit a defendant whose counsel has undertaken to file the notice of
appeal, to invoke the doctrine of constructive filing when the defendant has displayed no
diligence in seeing that his attorney has discharged this responsibility.” (Benoit, supra,
10 Cal.3d at pp. 88-89, emphasis added.)
       In Benoit, two petitioners, Benoit and Wyckoff, were allowed to file a belated
notice of appeal through the constructive filing doctrine.
       Petitioner Benoit (Benoit) had two trials where he was represented by different
counsel. When Benoit was sentenced in the first trial, Benoit asked the first trial counsel
to file a notice of appeal. (Benoit, supra, 10 Cal.3d at p. 87.) Benoit was transferred to a
different county for trial on another charge and represented by a second trial counsel.
Benoit asked the second trial counsel to ensure the first trial counsel filed the notice of
appeal. The second trial counsel was assured by the first trial counsel’s secretary that the
appeal was being processed. At Benoit’s apparently repeated insistence, the second trial
counsel later rechecked and discovered the appeal had not been filed. (Ibid.)
       Petitioner Wyckoff (Wyckoff) asked his trial counsel to file a notice of appeal,
trial counsel promised he would. (Benoit, supra, 10 Cal.3d at pp. 77-78.) At or near the
time the notice was due, Wyckoff asked counsel why his notice of appeal had not been
filed. Counsel responded he assumed it had been filed, and ultimately filed an untimely
notice of appeal. (Ibid.)




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       “It is eminently clear that petitioner Benoit was fully diligent in his repeated
efforts within the 60-day period to make sure his appeal was filed. He was thwarted by
circumstances beyond his control, and is entitled to a declaration that his appeal is
pending by virtue of the doctrine of constructive filing. [¶] … [¶] At or near the time the
notice was due, petitioner Wyckoff inquired of the clerk of the court whether [the notice
of appeal] had been filed. When, upon further inquiry he discovered the notice had still
not been filed, he made inquiry of his attorney.… We hold that these diligent efforts in
addition to the reasonable reliance upon his attorney’s explicit promise entitles petitioner
Wyckoff to constructive filing of his appeal. (Benoit, supra, 10 Cal.3d at p. 89, emphasis
added.)
       Both petitioners in Benoit displayed diligence during or at the end of the 60-day
period to check if their notice of appeal had been filed. (Benoit, supra, 10 Cal.3d at p. 89,
emphasis added.) Petitioner does not state he made any efforts to check on the status of
his appeal during the three months from September 11, 2014, when counsel told him he
would file the notice of appeal, until December 20, 2014, when petitioner made the
assumption it had not been filed. Despite petitioner not displaying the same amount or
type of diligence that the petitioners in Benoit did, it appears petitioner displayed some
diligence when he assumed his attorney had failed to file a notice of appeal and began
advocating on his own behalf.
       We conclude petitioner is entitled to relief.
                                      DISPOSITION
       Petitioner is granted leave to file a notice of appeal and request for certificate of
probable cause on or before 30 days from the filing date of this opinion in Stanislaus
County Superior Court, case Nos. 1458227, 1454017 and 1454471.
       Let a writ of habeas corpus issue directing the Clerk of the Stanislaus County
Superior Court to file petitioner’s notice of appeal in its case Nos. 1458227, 1454017 and


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1454471, if received within 30 days from the date of the filing of this opinion, to treat it
as being timely filed, and to proceed with the preparation of the record on appeal in
accordance with the applicable California Rules of Court.
       Petitioner’s additional habeas claims are denied without prejudice for
consideration in the appeal.
       A copy of this opinion shall be sent to the Central California Appellate Program.




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