Metropolitan News-Enterprise


Tuesday, February 13, 2018


Page 1


Court of Appeal:

Untimely Notice of Appeal Must Be Accepted Because Lawyer Who Said He Would File It was Busy

Panel Dispenses With Inquiry Required by Supreme Court Decision Into Inmates’ Personal Efforts to Get Notice Filed


By a MetNews Staff Writer


The Fourth District Court of Appeal, acting in the case of a child molester sentenced to 80 years-to-life, has ordered that an untimely notice of appeal be accepted for filing because the defendant’s lawyer has said he was bogged down in a complex trial and didn’t get around to filing it within the allotted 60-day period.

In an unpublished “By the Court” opinion by Div. Three, a petition for a writ of habeas corpus was granted Friday to Jose Luis Gonzalez, with the panel relying on the California Supreme Court’s 1973 holding in In re Benoit. However, the panel—comprised of Acting Presiding Justice William W. Bedsworth and Justices Eileen Moore and Raymond J. Ikola—did not address some concerns expressed in Benoit.

Friday’s opinion does not point to evidence adduced by Gonzalez that he acted diligently in attempting to cause the deadline to be met, as required by the high court’s decision, nor does it discuss whether his lawyer—who is not identified—will be reported to the State Bar for neglect, an action which Benoit indicates should be considered.

The Office of Attorney General did not oppose the granting of the writ.

Fourth District’s Opinion

Friday’s opinion, citing Benoit, declares:

“The principle of constructive filing of the notice of appeal is applied in situations where trial counsel advises a criminal defendant that he will file a notice of appeal on his behalf, and then fails to do so in accordance with the law….This is because an attorney who has advised his client that he will file a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file it himself.  In this case, counsel advised Gonzalez that he would file a notice of appeal on his behalf. Gonzalez’s reasonable reliance on the promise of counsel to file a timely notice of appeal entitles him to the relief requested.”

The opinion instructs that Orange Deputy Public Defender Catherine Learned, who presented the writ petition to the appeals court, prepare a notice of appeal, present it for filing within 30 days of Friday’s opinion—which was made final immediately—and that the clerk of the Orange Superior Court accept it.

Justice Sullivan’s Opinion

California Supreme Court Justice Raymond Sullivan, since deceased, wrote the opinion in Benoit (to which Justice William P. Clark Jr., also now deceased, dissented).

The opinion broadened the court’s 1947 holding in People v. Slobodion that a prisoner has constructively appealed within the jurisdictional time limits where the person  attempted to so but was thwarted by action or inaction of prison officials. There, the inmate delivered a notice of appeal to  officials for mailing six days before the deadline, but they delayed the mailing until the deadline had passed.

In Benoit, Sullivan said that the principle expressed in Slobodion “should be extended to apply to situations like the instant one where the defendant is incarcerated or otherwise in custody after having been properly notified of his appeal rights by the sentencing judge and has made arrangements with his trial attorney to file a notice of appeal for him.”

Given the required advisement by the trial judge to the defendant, at sentencing, of the 60-day deadline for filing a notice of appeal, Sullivan said, the responsibility remains with the defendant to attempt to see to it that a lawyer entrusted with the responsibility follows through.

Noting that there had been a mere 10-day period within which to file a notice of appeal, enlarged in 1972 to 60 days, Sullivan commented:

“We believe that the 60-day period is now sufficient for defendants, including those in prison or other custody, who desire to take the appeal personally and without counsel, particularly in view of the notification of appeal rights and advice as to ‘the necessary steps and time for taking an appeal’… which must now be given them by the sentencing court.

“We believe that it goes without saying that such 60-day period is more than ample time for a member of the State Bar. While we are not insensitive to the multifold day-to-day problems of the busy practitioner, both in private practice and in the public service, we are dismayed by the insouciance with which trial counsel in these matters before us seemed to have regarded their obligation to perform a crucial task within an ample period of time in a criminal case. Although in proper circumstances, we may not permit an attorney’s dereliction of this duty to penalize a defendant who has justifiably relied on his attorney to discharge it, we will not excuse such dereliction of duty and in the future may well refer the matter to the State Bar for appropriate disciplinary action.”

In light of the “ample” 60-day period for filing the notice, and the express advisement of the period by the sentencing judge, Sullivan said, “we will not indiscriminately permit a defendant whose counsel has undertaken to file the notice of appeal, to invoke the doctrine of constructive filing when the defendant has displayed no diligence in seeing that his attorney has discharged this responsibility.”

The high court reiterated in the 1975 case of Hollister Convalescent Hospital, Inc. v. Rico that a constructive filing will be recognized where “an incarcerated criminal appellant has made arrangements with his attorney for the filing of a timely appeal” only if the inmate “has displayed diligent but futile efforts in seeking to insure that the attorney has carried out his responsibility.”

In 2009, the Third District Court of Appeal pointed out that “Benoit cautions that constructive filing is limited to those cases in which the defendant also shows some diligence in seeking to perfect the appeal” and Div. Six of this district’s Court of Appeal noted that the inmate must “make the required evidentiary showing” in order to have a late filing regarded as timely.

The panel issuing the writ on Friday provided no explanation of why it was omitting an inquiry as to Gonzalez’s diligence.

Gonzalez was convicted June 7, 2017, on six counts of lewd or lascivious acts with a minor younger than 14 and four counts of lewd or lascivious acts with a minor. There were two female victims, aged 7 and 13 at the time of the offenses.

The defendant, at 65, faced a potential sentence of 250 years to life in prison. He was sentenced June 8 by Orange Judge Steven Bromberg to a sentence that was, as matter, no different from that, of  80 years to life. 

The case is In re Gonzalez, G055846.


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