Filed 6/6/14 In re Ruiz 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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                                                                                 F069330

               JOSEPH RUIZ,                                         (Tulare Super. Ct. No. PCF290775)

                            On Habeas Corpus.                                        OPINION


                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         Lisa Bertolino, Tulare County Public Defender, Thomas McGuire, Assistant
Public Defender, and Nathan G. Leedy, Supervising Attorney, for Petitioner.
         No appearance on behalf of respondent.
                                                        -ooOoo-


                                          STATEMENT OF FACTS
         On May 12, 2014, petitioner filed in this court a “Petition for Writ of Mandate.”
This court deems said pleading to be a petition for writ of habeas corpus.
         In the petition, petitioner asserts that his trial attorney failed to fulfill his promise
to timely file a notice of appeal from his convictions in Superior Court of Tulare County


*        Before Cornell, A.P.J., Gomes, J., and Franson, J.
case No. PCF290775. The convictions followed the denial of petitioner’s motion to
suppress and his entry of no contest pleas.
       Petitioner’s former counsel admits he promised to timely file a notice of appeal on
petitioner’s behalf and inadvertently failed to keep that promise.
       The Attorney General was given an opportunity to file opposition to the petition
but did not respond in the time allowed.
                                       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 (Benoit).)
       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

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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. (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 admits he did not timely file a notice of appeal on
petitioner’s behalf even though he promised to do so.
                                        DISPOSITION
         Petitioner is entitled to relief and his petition for writ of habeas corpus is granted.
         Petitioner is directed to cause a notice of appeal to be filed in Tulare County
Superior Court action No. PCF290775 on or before 30 days from the date this opinion is
filed.
         Let a petition for writ of habeas corpus issue directing the Clerk of the Superior
Court of Tulare County to file the notice in its action No. PCF290775, to treat it as being

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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 if the notice of appeal is
received by that court on or before 30 days from the date this opinion is filed.
       This opinion is final forthwith.




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