People v. Adanandus CA1/4 ( 2023 )

Filed 12/28/23 P. v. Adanandus CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A167402
v. (Alameda County
RAYMOND ADANANDUS, Super. Ct. No.
20CR000362A)
Defendant and
Appellant.
Raymond Adanandus appeals from the court’s imposition of
a $300 restitution fine as part of his sentence after pleading no
contest to robbery with a firearm use enhancement. (Pen. Code,
§§ 211, 12022.5.) Adanandus’ notice of appeal was not timely
filed, so we must dismiss this appeal.
“ ‘Unless the notice [of appeal] is actually or constructively
filed within the appropriate filing period, an appellate court is
without jurisdiction to determine the merits of the appeal and
must dismiss the appeal.’ ” (People v. Lyons (2009)
178 Cal.App.4th 1355, 1361.) California Rules of Court1, rule
1 Undesignated citations to rules are to the California Rules
of Court.
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8.308(a) states that generally “a notice of appeal . . . must be filed
within 60 days after the rendition of the judgment or the making
of the order being appealed” and “no court may extend the time to
file a notice of appeal.”
By operation of these rules, Adanandus had 60 days after
the judgment to file his notice of appeal. The court rendered
judgment when it pronounced Adanandus’ sentence on October
17, 2022. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)
The deadline to file the notice of appeal therefore expired on
December 16, 2022.
Adanandus’ notice of appeal establishes that he prepared it
on January 7, 2023, and the envelope was postmarked January
10, 2023. The trial court received it on January 12, 2023.
Barring application of some exception, the appeal is untimely and
dismissal is mandatory. (Rule 8.308(a); People v. Lyons, supra,
178 Cal.App.4th at p. 1361.)
Adanandus recognizes that his appeal is not timely. In his
opening brief, he seeks leave to file a motion for constructive
filing of his notice of appeal if we find his appeal untimely.
Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106,
which Adanandus cites, recognized two scenarios in which an
incarcerated defendant’s notice of appeal will be deemed
constructively filed within the deadline. The first, the prison-
delivery rule, treats an incarcerated litigant’s notice of appeal as
timely if the litigant delivered it to prison officials for mailing
before the deadline. (Id. at pp. 114–115.) In the second, a notice
of appeal will be deemed constructively filed before the deadline
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if “an incarcerated defendant made arrangements with counsel to
file a notice of appeal and diligently attempted to ensure that his
or her appeal was filed in a timely manner.” (Id. at p. 116.)
The record before us does not demonstrate any basis to
apply these doctrines. Adanandus prepared his notice of appeal
on January 7, 2023, weeks after the deadline had expired. The
prison-delivery rule thus cannot save his appeal. As for the
diligent defendant rule, he nowhere explains whether he asked
his trial counsel to prepare a notice of appeal or what diligent
efforts he made to ensure his counsel timely filed the notice.
We will not grant leave to Adanandus to file a motion for
constructive filing. His request for leave demonstrates that he
recognized that his notice of appeal was untimely. He also cited
People v. Zarazua (2009) 179 Cal.App.4th 1054, 1058, which held
that a defendant may raise the constructive filing issue by
motion, not just via a petition for writ of habeas corpus.
Adanandus therefore knew he could file a motion for constructive
filing, and he should have done so before or concurrently with his
opening brief. He cites no authority entitling him to pursue the
issue piecemeal as he proposes, after obtaining a provisional
ruling from this court that the appeal is untimely. Moreover,
after the Attorney General argued in his brief that the appeal
was untimely, Adanandus did not file a reply brief. While reply
briefs are optional (rule 8.360(c)(3)), we construe his failure to
respond to the Attorney General’s argument and continued
failure to move for constructive filing as a concession that he
cannot make the required showing.
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This appeal is dismissed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
HIRAMOTO, J.
People v. Adanandus (A167402)

Judge of the Superior Court of California, County of
Contra Costa, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
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