Error and/or relief
This habeas petition seeks a belated appeal from a judgment rendered in the superior court. Petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine.
First Holding:
In response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief. Pursuant to the Attorney General’s response, this court may grant relief without further proceedings.
Authority:
People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7
Second Holding:
Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.
Authority:
In re Benoit (1973) 10 Cal.3d 72
Third Holding:
[Gary note: The “Benoit” process is fairly routine, and the opinion does not discuss it. Except for roughly a 10-year period from 1961-1971 (when the Rules of Court set up a process for a petition for relief from default), there is no such thing in criminal law as a valid “late notice of appeal.” If the notice of appeal is not filed by the deadline, the court has no jurisdiction to proceed with the appeal. [In Benoit, however, the Supreme Court recognized the difficulties of getting documents filed when the defendant is in custody. It confirmed or adopted the concept that if (a) the defendant is in custody the entire period of time for the filing of a notice of appeal, and (b) during the filing period the defendant takes steps to timely file the notice of appeal or to get someone to file it on his behalf (such as his or her attorney), the court will deem the notice of appeal constructively timely filed. Once it’s deemed to have been filed (albeit constructively) within the filing period, then it is not late, right? [But both conditions are critical: the defendant must have been in custody the entire period AND the defendant must have taken reasonable efforts before the expiration of the deadline for filing. [There is also the “prison delivery” rule, which treats the notice of appeal has having been filed timely if–prior to the expiration of the filing period–the inmate delivers the notice of appeal to the custodial official. I have listed the additional authorities below, though they were not part of the unpublished opinion. If you are faced with a similar problem, I suggest you read Benoit, Jordan, and Silverbrand, because they go into depth on the history and development of constructive filing and the prison delivery rule.]Authority:
In re Benoit (1973) 10 Cal.3d 72 [incarcerated defendant timely requests the attorney to file the notice of appeal but the attorney does not]
In re Jordan (1992) 4 Cal.4th 116 [articulately the “prison delivery rule,” something that Benoit also discussed]
Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 [extending the prison delivery rule to incarcerated defendants needing to appeal in civil cases]
Houston v. Lack (1988) 487 U.S. 266, 271 [holding that a self-represented prisoner’s appeal from the denial of a petition for writ of habeas corpus—a civil proceeding—was timely filed when delivered by the petitioner to prison authorities within the applicable 30-day period]
Rules of Court, rule 8.25(b)(5) [If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.]
Fourth Holding:
[GARY NOTE: In felony cases, the notice must be filed within 60 days.]Authority:
Rules of Court, rule 8.308
Fifth Holding:
[GARY NOTE: In misdemeanor appeals, the notice must be filed within 30 days.]Authority:
Rules of Court, rule 8.393
Sixth Holding:
[GARY NOTE: An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. I’ve listed authority below.]Authority:
In re G.C. (2020) 8 Cal.5th 1119
People v. Mendez (1999) 19 Cal.4th 1084, 1094 [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 or on its own motion.]