Filed 6/6/14 In re Calderon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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                                                                                F069096

             MIGUEL CALDERON,                                    (Tulare County Sup. No. VCF239260A)

                            On Habeas Corpus.                                       OPINION


                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         Miguel Calderon, in pro. per., for Petitioner.
         Kamala D. Harris, Attorney General, and Jamie A. Scheidegger, Deputy Attorney
General, for Respondent.
                                                        -ooOoo-

                                          STATEMENT OF FACTS
         A Tulare County jury convicted petitioner jury of six counts of attempted murder
(Pen. Code, §§ 664, 187) and one count of shooting at an inhabited dwelling (Pen. Code,
§ 246). The jury also found true numerous sentencing enhancements. Petitioner was
originally sentenced in October of 2011 to 120 years to life.

   Before Poochigian, Acting P.J., Detjen, J., and Sarkisian, J.†
†
  Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
       On appeal, this court concluded the sentence constituted cruel and unusual
punishment under Graham v. Florida (2010) 560 U.S. 48 and People v. Caballero (2012)
55 Cal.4th 262 because petitioner was only 17 years of age at the time he committed the
offenses. (People v. Calderon (May 23, 2013 , F063435) [nonpub. opn.] at pp. 15-17.)
This court reversed and remanded the case for resentencing. (Id. at p. 17.)
       In the verified habeas petitions he filed in this case and the related action, No.
F068837, petitioner states he was resentenced on October 28, 2013, to 55 years to life.1
He also claims to have asked his attorney at the sentencing hearing to file a notice of
appeal on his behalf and that she agreed to do so. He first learned on January 27, 2014,
that she had not timely filed the notice of appeal as promised.
       The record in this case includes two letters from the Superior Court of Tulare
County that support petitioner’s allegations. The first, dated January 17, 2014, advised
petitioner’s trial attorney, Melina Benninghoff, that the court did not receive the notice of
appeal she presented in petitioner’s case until January 13, 2014, and that the last day to
file the notice was December 27, 2013. The second letter, dated March 7, 2014, advised
petitioner the court received his notice of appeal on February 13, 2014, but would not act
on it because it was untimely. The letter also told petitioner if he wished to pursue an
appeal, he would have to file a writ with the Fifth District Court of Appeal.
       This petition was filed on March 25, 2014.
       This court twice invited petitioner’s trial attorney to respond to petitioner’s
allegations. She did not reply.
       The Attorney General was given an opportunity to respond and advised this court
in writing on May 27, 2014, that they do not oppose this court granting petitioner relief.


1     On its own motion, this court takes judicial notice of the record in the related
habeas proceeding, In re Miguel Calderon, No. F068837.


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                                       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
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

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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 did not timely file a notice of appeal on
petitioner’s behalf despite her promise 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. VCF239260A on or before 30 days of the date this opinion is
filed.
         Let a petition for writ of habeas corpus issue directing the Clerk of the Superior
Court for Tulare County to file the notice of appeal in action No. VCF239260A, to treat it
as being 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 it receives the
notice of appeal on or before 30 days of the date this opinion is filed.
         This opinion is final forthwith.




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