Filed 7/2/14 (unmodified version attached)

                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                             DIVISION TWO


THE PEOPLE,                                             A140128
        Plaintiff and Respondent,
                                                        (San Francisco City & County
v.                                                      Super. Ct. No. 218652)
MARLON RIVERA,
                                                      ORDER MODIFYING OPINION AND
        Defendant and Appellant.                      DENYING PETITION FOR
                                                      REHEARING
                                                      [NO CHANGE IN JUDGMENT]

BY THE COURT:
        It is ordered that the published opinion filed herein on June 5, 2014, be modified
as follows:

        (1) On page 1, the third sentence of the first paragraph shall be modified to read:

        Because defendant has established a clear lapse of counsel’s professional
        duty, we shall grant the motion and direct that the late notice of appeal be
        accepted for filing.

       (2) On page 9, the sentence beginning “In these circumstances” shall be modified
to read:

        In these circumstances, judicial economy is best served by allowing
        defendant to seek relief by simple motion (see People v. Zarazua (2009)
        179 Cal.App.4th 1054, 1062-1052), rather than insisting on the
        cumbersome procedures attending a formal petition for relief in habeas
        corpus and a full-flown evidentiary hearing.

        (3) On page 9, the first sentence under the heading DISPOSITION is modified to
read:

                                                  1
         The motion is granted.

         This modification does not effect a change in the judgment.
         The petition for rehearing is denied.




Dated:                                               _______________________ Acting P.J.




                                                 2
Trial Court:                                  Superior Court of the City and County of
                                              San Francisco

Trial Judge:                                  Honorable Harold E. Kahn

Attorney for Defendant and Appellant:         Victor J. Morse, under appointment by the
                                              Court of Appeal

Attorneys for Plaintiff and Respondent:       Kamala D. Harris, Attorney General,
                                              Hanna Chung, Deputy Attorney General




                                          3
Filed 6/5/14 unmodified version
                                  CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                        DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A140128
v.
MARLON RIVERA,                                      (San Francisco City & County
                                                    Super. Ct. No. 218652)
        Defendant and Appellant.


        Defendant Marlon Rivera has moved for leave to file a late notice of appeal from a
postjudgment restitution order. Although defendant’s situation cannot be fitted into the
limited circumstances where state law authorizes late filing, federal constitutional law
holds that the failure of defendant’s trial counsel to file a timely notice of appeal amounts
to the ineffective assistance of counsel prohibited by the Sixth Amendment. Because
defendant has established a clear lapse of counsel’s professional duty, we shall treat
defendant’s moving papers as a petition for a writ of habeas corpus, grant the petition,
and direct that the late notice of appeal be accepted for filing.
        Defendant was convicted in the Superior Court of the City and County of San
Francisco of one count of first degree murder (Pen. Code, §§ 187); two counts of robbery
(Pen. Code, § 211); one count of attempted robbery (Pen. Code, §§ 211, 664); one count
of conspiracy (Pen. Code, § 182); and one count of active participation in a criminal
street gang (Pen. Code, § 186.22), together with various enhancements. On
September 24, 2013, defendant was sentenced to state prison for an aggregate term of
35 years to life. On October 2, 2013, defendant’s counsel, Wm. Michael Whelan, Jr.,
filed a timely notice of appeal on his behalf from the judgment of conviction.



                                               1
       On November 25, 2013, the trial court held a hearing to determine the amount of
restitution. At the conclusion of the hearing, the court made orders directing defendant to
pay almost $25,000 to the Victim Compensation and Government Claims Board, together
with approximately $80,000 for two individual victims.
       It was not until February 11, 2014, that Mr. Whelan, with the assistance of
Mr. Victor Morse, who had been appointed as defendant’s appellate counsel, attempted to
file a notice of appeal from the restitution order. The clerk of the San Francisco Superior
Court declined to accept the notice for filing, but advised Mr. Whelan that “A copy of
your appeal [sic] has been forwarded to the First District Appellate Project along with
this letter.” Mr. Morse now submits a “Appellant’s Motion For Constructive Filing of
His Late Notice of Appeal from the Restitution Order.”
       The motion is accompanied by two declarations. The first is by Mr. Whelan. He
states he did not file a second notice of appeal “because I believed that none was
necessary. I mistakenly believed that the notice of appeal filed on October 2, 2013 would
apply to all appealable issues in the case, including the restitution order. I did not know
that under California law a post-judgment restitution order requires its own notice of
appeal.” (See People v. Guardado (1995) 40 Cal.App.4th 757, 763.) The second
declaration is by defendant, who states: “I would like to appeal from the restitution
order. If I had known that Mr. Whelan would not file a timely notice of from the
restitution order, I would have attempted to file such a timely notice of appeal myself.”
       The Attorney General filed opposition to the motion, only partially responding to
defendant’s arguments. We were sufficiently concerned by this omission that we ordered
oral argument on the motion.
                                      DISCUSSION
       “ ‘An untimely notice of appeal is “wholly ineffectual: The delay cannot be
waived, it cannot be cured by nunc pro tunc order, and the appellate court has not power
to grant relief, but must dismiss the appeal on motion of a party or on its own motion.” ’ ”
(In re Chavez (2003) 30 Cal.4th 643, 650; accord, In re Jordan (1992) 4 Cal.4th 116,
121.) Except in time of public emergency, “no court may extend the time to file a notice


                                             2
of appeal.” (Cal. Rules of Court, rule 8.308(a); id., rule 8.60(d) [“a reviewing court may
relieve a party from default for any failure to comply with these rules except the failure to
file a timely notice of appeal,” italics added].) Nevertheless, the rule of dismissal is
subject to a small area of exceptions known as “constructive” filing, which creatively
utilize legal fictions to treat the notice of appeal as timely filed. (See Silverbrand v.
County of Los Angeles (2009) 46 Cal.4th 106, 113-114.)
       The first recognized instance of constructive filing was the so-called
‘prison-delivery” or “prison filing” rule unveiled in People v. Slobodion (1947) 30 Cal.2d
362. There, prior to expiration of the time for filing a notice of appeal, a convicted
inmate delivered such a notice to prison authorities for mailing to the trial court clerk.
The fiction was that giving the notice to a prison guard for mailing would be treated as
tendering the notice to a court clerk for filing. (See In re Benoit (1973) 10 Cal.3d 72,
81-82 and decisions cited; cf. People v. Casillas (1990) 218 Cal.App.3d 1365, 1370
[urging that “[t]he conditions which created the need for the ‘prison filing’ doctrine . . .
have been eliminated and with them the reasons to continue indulging that particular
legal fiction”], disapproved by In re Jordan, supra, 4 Cal.4th 116, 130, fn. 8; Hollister
Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 (dis. opn. of Tobriner, J.)
[“the legal fiction of constructive filing” is merely “[d]isguising a doctrine of reasonable
reliance”].)
       The prison delivery rationale expanded. As explained by our Supreme Court:
“Subsequent to Slobodion, we applied the prison-delivery rule to similar factual situations
in which it appeared that the conduct of prison authorities, negligent or otherwise, had
played a significant role in delaying transmittal of the prisoner’s notice of appeal.
[Citations.] We additionally applied the constructive filing doctrine to situations in
which the prisoner, although failing to file a notice within the . . . filing period, had relied
upon statements or conduct of prison authorities that lulled the prisoner into a false sense
of security. [Citations.]” (Silverbrand v. County of Los Angeles, supra, 46 Cal.4th 106,
115, fn. 4.)



                                               3
       The next expansion came in 1973, with In re Benoit, supra, 10 Cal.3d 72. Again,
as explained by our Supreme Court: “In Hollister Convalescent Hosp., Inc. v. Rico . . . ,
we observed that Benoit extended the principle of constructive filing announced in
People v. Slobodion . . . ‘to situations wherein an incarcerated criminal appellant has
displayed diligent but futile efforts in seeking to insure that the attorney has carried out
his responsibility.’ In Benoit, we considered the petitions for writ of habeas corpus of
two defendants who claimed that, as prisoners, they had relied upon their trial attorneys’
express agreements to timely file notices of appeal and that the attorneys had failed to do
so. . . . [W]e held that the doctrine applied when the untimely filing of a notice of appeal
was due to certain negligence of trial counsel. [Citations.]
       “In Benoit, we applied the doctrine of constructive filing based upon a promise or
representation made by each defendant’s attorney that he would timely file a notice of
appeal on his client’s behalf. [Citation.] We relied in part upon the circumstances that
the assurances had been made by the defendants’ trial counsel, noting that ‘the prisoner
would be more justified in relying on his counsel who had represented him and might
have some continuous concern for him . . . .’ [Citation.]” (In re Chavez, supra,
30 Cal.4th 643, 657-658.)
       Neither of these categories fits defendant’s situation. There was no actual notice
of appeal entrusted to any “public official[] charged with the administration of justice”
(People v. Martin (1963) 60 Cal.2d 615, 617), so there can be no application of the prison
delivery doctrine. There was no promise or representation by Mr. Whelan that he would
file a second notice of appeal on defendant’s behalf, hence no neglect on his part. With
no such articulated assurance, defendant could have no resulting expectation that
Mr. Whelan would perfect a timely appeal from the restitution order. Consequently,
defendant cannot demonstrate his “ ‘diligent but futile efforts in seeking to insure that his
attorney has carried his responsibility.’ ” (In re Chavez, supra, 30 Cal.4th 643, 657.) No
aspect of constructive filing theories can reach this situation. (See People v. Aguilar
(2003) 112 Cal.App.4th 111, 116.)



                                              4
       But these are state law constructs. Defendant sees them trumped by federal
constitutional law, specifically the Sixth Amendment’s guarantee of the effective
assistance of counsel, as construed by the United States Supreme Court in Roe v.
Flores-Ortega (2000) 528 U.S. 470.
       Flores-Ortega involved a defendant who pled guilty to various felony charges in a
California state prosecution. Whether his trial attorney agreed to file a notice of appeal
was unclear, but what was clear was that Flores-Ortega did not consent to counsel not
filing the notice. The issue addressed by the court was—within the familiar matrix of
Strickland v. Washington (1984) 466 U.S. 668—“Is counsel deficient for not filing a
notice of appeal when the defendant has not clearly conveyed his wishes one way or the
other?” (Roe v. Flores-Ortega, supra, 528 U.S. 470, 477.) Although noting that
“California imposes on trial counsel a per se duty to consult with defendants about the
possibility of an appeal” (id. at p. 479, citing Pen. Code, § 1240.1, subd. (a)1), the court
nevertheless decided to hold “as a constitutional matter, that in every case counsel’s
failure to consult with the defendant about an appeal is necessarily unreasonable.” (Id. at
p. 479.)
       “We instead hold that counsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think either (1) that a rational
defendant would want to appeal . . . , or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing. In making this


       1
         Which provides in pertinent part: “In any noncapital criminal . . . case wherein
the defendant would be entitled to the appointment of counsel on appeal if indigent, it
shall be the duty of the attorney who represented the person at trial to provide counsel
and advice as to whether that arguably meritorious grounds exist for reversal or
modification of the judgment on appeal.” Subdivision (b) provides that the attorney also
has the duty “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.”


                                              5
determination, courts must take into account all the information counsel knew or should
have known. [Citation.] Although not determinative, a highly relevant factor in this
inquiry will be whether the conviction follows a trial or a guilty plea, both because a
guilty plea reduces the scope of potentially appealable issues and because such a plea
may indicate that the defendant seeks an end to judicial proceedings.” (Roe v.
Flores-Ortega, supra, 528 U.S. 470, 480.)
       “We ‘normally apply a “strong presumption of reliability” to judicial proceedings
and require a defendant to overcome that presumption’ [citation], by ‘show[ing] how
specific errors of counsel undermined the reliability of guilt.’ [Citation.] Thus, in cases
involving mere ‘attorney error,’ we require the defendant to demonstrate that the errors
‘actually had an adverse effect on the defense.’ [Citations.]
       “In some cases, however, the defendant alleges not that counsel made specific
errors in the course of representation, but rather that during the judicial proceeding he
was either—actually or constructively—denied the assistance of counsel altogether. ‘The
presumption that counsel’s assistance is essential requires us to conclude that a trial is
unfair if the accused is denied counsel at a critical stage.’ [Citation.] The same is true on
appeal. Under such circumstances, ‘[n]o specific showing of prejudice [is] required,’
because ‘the adversary process itself [is] presumptively unreliable.’ [Citations.]
       “Today’s case is unusual in that counsel’s alleged deficient performance arguably
led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a
proceeding itself. According to [the defendant], counsel’s deficient performance
deprived him of a notice of appeal and hence, an appeal altogether. Assuming those
allegations are true, counsel’s deficient performance has deprived [the defendant] of the
appellate proceeding altogether. In [citations], we held that the complete denial of
counsel during a critical stage of a judicial proceeding mandates a presumption of
prejudice because ‘the adversary process itself’ has been rendered ‘presumptively
unreliable.’ [Citation.] The even more serious denial of the entire judicial proceeding
itself, which a defendant wanted at the time and in which he had a right, similarly
demands a presumption of prejudice. Put simply, we cannot accord any ‘ “presumption


                                               6
of reliability,” ’ [citation], to judicial proceedings that never took place.” (Roe v.
Flores-Ortega, supra, 528 U.S. 470, 482-483.)
          The power of this presumption of prejudice may be slight, and it is rebuttable. Yet
it does assist the defendant’s hardly onerous burden of proof: “[T]o show prejudice in
these circumstances, a defendant must demonstrate that there is a reasonable probability
that, but for counsel’s deficient failure to consult with him about an appeal, he would
have timely appealed.” (Roe v. Flores-Ortega, supra, 528 U.S. 470, 484.) The defendant
is not required to specify the arguments he or she would have presented, much less
whether those arguments would have prevailed. All the defendant must prove, with the
considerable aid of Penal Code section 1240.1, is that trial counsel’s performance was
deficient and deprived the defendant “of an appeal that . . . otherwise would have [been]
taken.” (Id. at p. 484.) “[W]hen counsel’s constitutionally deficient performance
deprives a defendant of an appeal that he otherwise would have taken, the defendant has
made out a successful ineffective assistance of counsel claim entitling him to an appeal.”
(Ibid.)
          Flores-Ortega adds a third category of situations where the strict jurisdictional
time period in criminal appeals will be relaxed. There is scant reason to insist on strict
application of the state law 60-day limit if the defendant can get his or her appeal with a
habeas petition using the hardly burdensome Flores-Ortega federal standard for
ineffective assistance of counsel. (See People v. Byron (2009) 170 Cal.App.4th 657,
664-666; cf. In re Benoit, supra, 10 Cal.3d 72 78 [“ ‘[i]n the absence of another adequate
remedy, habeas corpus lies to correct the erroneous denial of a right to an effective
appeal’ ”].)
          At oral argument, the Attorney General resisted granting defendant’s motion,
relying on the general principle that ineffective assistance of counsel claims are best
handled in habeas corpus proceedings where there are greater procedures for developing
factual issues. The Attorney General has never taken the position that Flores-Ortega is
inapplicable to postconviction proceedings which generate an appealable order; she only



                                                7
presents the prudential argument that the two declarations do not provide a complete
picture of what occurred between counsel and client after the restitution order was made.
       Habeas procedures are ordinarily preferred, in the interests of judicial economy,
“ ‘. . . “[if] the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” . . .’ ”
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) But this is not the usual habeas
situation because it does not involve the reasoning behind a tactical trial decision, and
perhaps measuring the impact of that decision in the light of a full trial record.
       It is true that defendant must rely on two inferences from the two declarations,
specifically: (1) that if Mr. Whelan had advised that a second notice of appeal was
required for the restitution order, defendant would have authorized it, and (2) with that
authorization, Mr. Whelan would have filed a notice (as he did following the judgment).
However, with the benefit of Mr. Whelan’s declaration, we know why he failed to file a
second notice of appeal—he mistakenly believed the already-filed notice of appeal from
the judgment would also reach the restitution order. With the benefit of defendant’s
declaration, we know that defendant wished to appeal that order. The details of any
conversation between defendant and Mr. Whelan regarding securing review of the
restitution order—if there was such a conversation—would be exceedingly unlikely to
disprove these inferences. The situation thus looks like one where there simply could be
no satisfactory explanation for not consulting defendant and filing a second notice of
appeal.
       Defendant easily satisfies the two requirements of a Flores-Ortega ineffective
assistance of counsel claim. Mr. Whelan’s declaration leaves no doubt that he did not
comply with the mandates of Penal Code section 1240.1, and thus his performance was
professionally deficient, when he failed to consult with defendant file a separate notice of
appeal from the restitution order. Defendant’s declaration is equally sufficient to
demonstrate that he always wanted to appeal from the restitution order. The notice of
appeal from the judgment of conviction is indicative of defendant’s desire to seek


                                               8
appellate review, certainly not a wish to conclude the entirety of the criminal proceedings
brought against him. (See Roe v. Flores-Ortega, supra, 528 U.S. 470, 480.) Defendant
has therefore established a more than reasonable probability that he was deprived “of an
appeal that . . . otherwise would have [been] taken” and is therefore entitled to relief. (Id.
at p. 484.) In these circumstances, judicial economy is best served by allowing defendant
to seek relief by simple motion—even if it is treated as a habeas corpus petition (see
People v. Zarazua (2009) 179 Cal.App.4th 1054, 1060-1063; People v. Byron, supra,
170 Cal.App.4th 657, 666)—rather than insisting on the cumbersome procedures
attending a formal petition for relief in habeas corpus and a full-blown evidentiary
hearing.
                                      DISPOSITION
       The motion, treated as a petition for a writ of habeas corpus, is granted. The clerk
of the San Francisco Superior Court is directed to accept for filing the notice of appeal
received on February 11, 2014.

                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




       *
        Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                              9
Trial Court:                               Superior Court of the City and County of
                                           San Francisco

Trial Judge:                               Honorable Harold E. Kahn

Attorney for Defendant and Appellant:      Victor J. Morse, under appointment by the
                                           Court of Appeal

Attorneys for Plaintiff and Respondent:    Kamala D. Harris, Attorney General,
                                           Hanna Chung, Deputy Attorney General




                                          10
