Filed 6/23/16 In re Engel 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ROBERT BRUCE ENGEL,                                              G053343

     on Habeas Corpus.                                                 (Super. Ct. No. 11HF1297)

                                                                       OPINION


                   Original proceedings; petition for a writ of habeas corpus to file a late
notice of appeal. Petition granted.
                   Appellate Defenders, Inc., and Patricia Ihara for Petitioner.
                   No appearance for Respondent Court.
                   Kamala D. Harris, Attorney General, and Julie L. Garland, Senior Assistant
Attorney General for Respondent.


                                      *                  *                  *
THE COURT:*
                Petitioner Robert Bruce Engel seeks relief from the failure to file a timely
notice of appeal. The petition is granted.
                Petitioner is 72 years old. He is currently on parole/post-release
community supervision along with a Penal Code section 290 registration requirement
pursuant to a judgment issued by the by the Orange County Superior Court on October
23, 2015.
                Petitioner was found guilty at a bench trial before Judge Craig L. Griffin on
October 4, 2012, of one count of indecent exposure with a prior. Petitioner was granted
in propia persona status after his verdict, but before he was sentenced. On August 9,
2013, petitioner agreed to the appointment of the Public Defender to represent him. On
November 19, 2013, the Public Defender declared a doubt as to petitioner’s competency
and criminal proceedings were suspended. On April 2, 2014, the trial court ordered
petitioner committed to Patton State Hospital.
                Petitioner appealed the commitment order in case No. G050074. On
December 19, 2014, the trial court found petitioner restored to mental competency,
ordered the criminal proceedings reinstated, and released petitioner on his own
recognizance.
                Petitioner then borrowed money to retain attorney Patrick Smith to prepare
and file a new trial motion on his behalf. In the event the motion was denied, the motion
would serve as a foundation for the drafting of a future appeal on his behalf. The new
trial motion was heard on October 23, 2015, and raised several issues. Those issues
included insufficiency of the evidence; whether the trial court erred when it failed to
make a finding that petitioner’s jury trial waiver was voluntary, knowingly and
intelligently made; and whether the trial court committed prejudicial evidentiary error.


*   Before O’Leary, P.J., Rylaarsdam, J. and Bedsworth J.

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The trial court denied the motion for a new trial, and sentenced petitioner to the upper
term of three years in state prison. Because petitioner had served all his time, he was not
remanded into custody.
              After petitioner was sentenced, retained counsel Smith also advised him
that he had several arguably meritorious appellate issues regarding sentencing. Based on
these discussions, petitioner believed that Smith was going to file the Notice of Appeal
on his behalf and relied on him to do so. On December 22, 2015, (the 60th day in which
to file a timely notice of appeal), petitioner went to the Superior Court and inquired about
the status of his appeal. The court clerk advised him it had not been filed. Petitioner
immediately obtained information on how to file an appeal online; prepared his own
notice of appeal; and returned to the court the following day, or on December 23, 2015,
to file it. The clerk stamped the document, “Received.” In a letter dated December 24,
2015, petitioner was informed his Notice of Appeal was untimely because it was filed
one day too late.
              The Attorney General does not oppose petitioner’s request for relief to file
the notice of appeal.
              The principle of constructive filing of the notice of appeal should be
applied in situations were a criminal defendant requests trial counsel to file a notice of
appeal on his behalf and counsel 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 who has been asked to file a
notice of appeal on behalf of a client has a duty to file a proper notice of appeal, or tell
the client how to file it himself. In this case, trial counsel either told petitioner or led him
to believe that he would file a notice of appeal on his behalf. Petitioner’s reasonable
reliance on the promise of trial counsel to file a timely notice of appeal entitles him to the
relief requested.
              The petition is granted. On petitioner’s behalf, Attorney Patricia Ihara is
directed to prepare and file a notice of appeal from the court’s order entered on October

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23, 2015. In Orange County Superior Court case No. 11HF1297 the clerk of the superior
court is directed to accept the notice for filing if presented within 30 days of this opinion
becoming final. 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.




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