In re Findlay CA5

Filed 3/9/16 In re Findlay 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 F072842
ANDY FINDLAY, (Kings Super Ct. No. 14CM2583)
On Habeas Corpus. OPINION
THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Andy Findlay, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Gerald A. Engler and Michael P. Farrell,
Assistant Attorneys General, Kathleen A. McKenna and Gregory B. Wagner, Deputy
Attorneys General, for Respondent.
-ooOoo-
Petitioner, Andy Findlay, seeks permission to file a belated notice of appeal by
way of a petition for writ of habeas corpus. This court grants petitioner’s request.
On June 1, 2015, petitioner was sentenced to a prison term of six years four
months for arson and burglary.
* Before Hill, P.J., Kane, J., and Smith, J.
To perfect an appeal, a notice of appeal must be filed within 60 days of the
judgment or order being appealed from. (Cal. Rules of Court, rule 8.308.) An appealable
judgment in a criminal case is generally rendered at the time of sentencing. Based on
petitioner’s sentence, imposed on June 1, 2015, a notice of appeal was required to be filed
no later than July 31, 2015.
On November 16, 2015, petitioner filed a petition for writ of habeas corpus in this
court. The request was denied without prejudice for failure to provide appropriate court
records supporting the petition.
Petitioner filed the instant petition on December 11, 2015. In this petition,
petitioner provides a declaration stating that he verbally asked his trial counsel to file a
notice of appeal on the date he was sentenced, that counsel told petitioner he would visit
him in the county jail, that petitioner made repeated attempts to contact counsel but
received no further communication from him, that petitioner sent a notice of appeal to the
Kings County Superior Court on October 15, 2015, and that the clerk returned it to him
because the 60-day period for filing it had lapsed. The declaration is declared to be true
under penalty of perjury.
On December 17, 2015, this court issued an order granting the Attorney General
leave to file an informal response. The Attorney General filed an informal response on
December 31, 2015.
DISCUSSION
A criminal defendant has the burden of timely filing a notice of appeal, but that
burden may be delegated to counsel. (In re Fountain (1977) 74 Cal. App. 3d 715, 719.)
When applicable, the doctrine of constructive filing allows an untimely filed notice of
appeal to be deemed timely. The doctrine protects defendants who have been “lulled into
a false sense of security” by defense counsel’s conduct. (In re Benoit (1973) 10 Cal. 3d
72, 86-89.)
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The Attorney General concedes that:
“Reasonable doubt as to the veracity of a petitioner’s allegations in
these matters is to be resolved in favor of the petitioner to protect the right
of appeal rather than forfeit it on technical grounds.”
In this case, petitioner’s declaration is sufficient to establish that he made a
constructive filing within the 60-day limit of filing a notice of appeal and made
reasonable efforts thereafter to perfect an appeal.
The Attorney General forthrightly states that she would not oppose granting
petitioner a belated appeal.
DISPOSITION
The Clerk/Administrator of this court is authorized to send a copy of the notice of
appeal attached to the petition in the above entitled action to the Clerk of the Kings
County Superior Court.
Let a writ of habeas corpus issue directing the Clerk of the Kings County Superior
Court to file said notice of appeal in Kings County Superior Court case No. 14CM2583,
to deem said notice to be timely filed, and to proceed with the preparation of and filing in
this court the record on appeal in accordance with the applicable rules of the California
Rules of Court.
Petitioner’s additional habeas claims are denied without prejudice for
consideration in the appeal.
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