Filed 8/26/16 In re Robledo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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                                                                                   F073413

            ADAM ROBLEDO,                                          (Kings Super Ct. No. 14CM7222HTA)

                            On Habeas Corpus.                                         OPINION


                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for writ of habeas corpus.
         Adam Robledo, in pro. per., for Petitioner.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Respondent.
                                                        -ooOoo-
         Adam Robledo (petitioner) seeks permission to file a belated notice of appeal by
way of a petition for writ of habeas corpus. Petitioner alleges he asked trial counsel to
file a notice of appeal and counsel’s failure to do so constituted ineffective assistance of
counsel.
         We will grant petitioner’s request for a belated appeal.


*        Before Hill, P.J., Detjen, J., and Franson, J.
                             STATEMENT OF THE FACTS
       On September 9, 2015, petitioner was sentenced to 25 years to life for battery on a
correctional officer and resisting an officer by force.
       Petitioner claims he requested counsel to file a notice of appeal, he relied on
counsel to timely do so, and counsel did not do so.
       Petitioner alleges he asked his federal public defender, David Wasserman (who
was helping him in another case), to ask his trial counsel to file the notice of appeal and
contact the Central California Appellate Program (CCAP).
       Petitioner submits a declaration from Wasserman, which states that while he was
representing petitioner in a habeas corpus proceeding, petitioner was charged with battery
on a correctional officer, attempted aggravated battery, and resisting or deterring a
correctional officer by force. After petitioner was convicted and sentenced on the
charges, petitioner sent Wasserman a letter explaining his sentence and noted, “‘whatever
you can do about this case[,] please do[.] I do not want to die in prison.’” Petitioner sent
another letter to Wasserman asking, “‘did you ever get in contact with Judge Donna
Tarter/[trial counsel] about their findings? If so, when?’” Petitioner sent Wasserman
another letter stating, “[o]ne lock up order has went amiss. Also send a copy of the lock
up order to [trial counsel.] He is assigned my appeal’s advicat <sic>. He didn’t do much
of anything to defend me[.] If he would have I wouldn’t have any need to appeal the
case.”1
       On November 9, 2015, Wasserman contacted trial counsel, who informed him that
he had filed a notice of appeal. Wasserman sent petitioner a letter stating that trial
counsel had filed a notice of appeal and it would be assigned to a CCAP attorney.


1      Petitioner submitted the three letters that he sent to Wasserman, showing petitioner
exhibited diligence in communicating with Wasserman about investigating whether his
appeal was filed. It is unclear why petitioner failed to directly communicate with trial
counsel.

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Wasserman then sent petitioner a letter indicating that CCAP had not received any
paperwork on petitioner’s appeal.
          On December 3, 2015, trial counsel emailed Wasserman and indicated he had not
filed a notice of appeal in petitioner’s case because petitioner had told him he did not
want to file a notice of appeal and “‘accepted the disposition.’” Wasserman emailed trial
counsel stating that petitioner wanted a notice of appeal filed, and requested that trial
counsel either file a notice of appeal or let Wasserman know if he was not willing to file a
notice of appeal and to produce a written waiver of appeal from petitioner. Trial counsel
did not provide a waiver of appeal but agreed to file a notice of appeal on petitioner’s
behalf.
          On December 9, 2015, trial counsel attempted to file a notice of appeal but it was
returned by the clerk marked “Received, but not Filed” because it was untimely.
          On April 13, 2016, this court sent petitioner’s trial counsel a letter which
explained that petitioner made claims regarding counsel’s failure to file a notice of
appeal, and counsel chose not to respond.
          On May 27, 2016, this court requested the Attorney General (AG) to respond to
the petition.
          On June 14, 2016, the AG responded that petitioner had stated a prima facie case
for relief under the constructive filing doctrine.
                                         DISCUSSION
          A notice of appeal must be filed within 60 days after the judgment or order being
appealed to confer appellate jurisdiction on this court. (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).) Based on petitioner’s September 9, 2015,
sentencing, November 9, 2015, was the deadline to file a timely notice of appeal.
          “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
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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.)
       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.) 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 the defendant’s behalf and counsel 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 [or her] undertaken task.” (Id. at p. 87.)
       On the other hand, a defendant whose counsel has undertaken to file the notice of
appeal, will not be indiscriminately permitted to “invoke the doctrine of constructive
filing when the defendant has displayed no diligence in seeing that his attorney has
discharged this responsibility.” (In re Benoit, supra, 10 Cal.3d at p. 89, emphasis added.)
       Petitioner claims he asked his trial counsel to file a notice of appeal, and although
petitioner does not explicitly state that trial counsel told petitioner he would do so, it can
be inferred that he agreed to do so based on trial counsel’s statement to Wasserman that a
notice of appeal had been filed. Later, trial counsel went back on his statement and told
Wasserman he did not file a notice of appeal because petitioner did not want to file a
notice of appeal, and would not provide Wasserman with a waiver of appeal from
petitioner. In the end, trial counsel attempted to file a notice of appeal one month too
late. Although petitioner should have contacted trial counsel directly or provided proof


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of doing so, petitioner was diligent in his efforts, through Wasserman, to inquire as to the
status of the notice of appeal and ensure it had been filed.
       For these reasons, we grant petitioner’s request to file a belated appeal.
                                      DISPOSITION
       Petitioner is granted leave to file a notice of appeal on or before 30 days from the
date of this opinion, in Kings County Superior Court case No. 14CM7222HTA.
       Let a writ of habeas corpus issue directing the Clerk of the Kings County Superior
Court, if the court receives the notice of appeal on or before 30 days from the date of this
opinion, to treat the notice of appeal as being timely filed, and to process the appeal in
accordance with the applicable rules of the California Rules of Court.
       This opinion is final forthwith as to this court.




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