People v. Rivera

• Decision Date: 05 June 2014
• Docket Number: A140128
• Citation: 172 Cal.Rptr.3d 679
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marlon RIVERA, Defendant and Appellant.

172 Cal.Rptr.3d 679

The PEOPLE, Plaintiff and Respondent,

v.Marlon RIVERA, Defendant and Appellant.

A140128

Court of Appeal, First District, Division 2, California.

Filed June 5, 2014

As Modified on Denial of Rehearing July 2, 2014

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

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

Kline, P.J.

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 grant the motion 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.

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 California 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 an "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, 47 Cal.Rptr.2d 81.) 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 [sic] 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 no power to give 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, 134 Cal.Rptr.2d 54, 68 P.3d 347 ; accord, In re Jordan (1992) 4 Cal.4th 116, 121, 13 Cal.Rptr.2d 878, 840 P.2d 983.) Except in time of public emergency, "no court may extend the time to file a notice 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 utilizes 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, 92 Cal.Rptr.3d 595, 205 P.3d 1047.)

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, 181 P.2d 868. 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, 109 Cal.Rptr. 785, 514 P.2d 97, and decisions cited; cf. People v. Casillas (1990) 218 Cal.App.3d 1365, 1370, 267 Cal.Rptr. 700 [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 in In re Jordan, supra, 4 Cal.4th 116, 130, fn. 8, 13 Cal.Rptr.2d 878, 840 P.2d 983 ; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677, 125 Cal.Rptr. 757, 542 P.2d 1349 (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, 92 Cal.Rptr.3d 595, 205 P.3d 1047.)

The next expansion came in 1973, with In re Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97. 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 made arrangements with his attorney for the filing of a timely appeal and 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 circumstance 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, 134 Cal.Rptr.2d 54, 68 P.3d 347, fn. omitted.)

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, 35 Cal.Rptr. 769, 387 P.2d 585 ), 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 the his attorney has carried out his responsibility.’ " ( In re Chavez, supra, 30 Cal.4th 643, 657, 134 Cal.Rptr.2d 54, 68 P.3d 347.) No aspect of constructive filing theories can reach this situation. (See People v. Aguilar (2003) 112 Cal.App.4th 111, 116, 4 Cal.Rptr.3d 802.)

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, 120 S.Ct. 1029, 145 L.Ed.2d 985.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 —"...Is counsel deficient for not filing a notice of appeal when the defendant has not clearly...