PEOPLE v. CHAVERS (1993)

OPINION

Gregory Allan Chavers appeals from the judgment after his plea of guilty to three counts of burglary, his admission to a prior serious felony, as well as a separate finding by the court that he was convicted of a separate prior serious felony.   He was ordered to serve 12 years in prison and now complains he was deprived of his constitutional right to represent himself.

 Consolidated with this appeal is his petition for writ of habeas corpus, in which he requests his belated notice of appeal be constructively filed.¹  We grant the writ and order his notice of appeal be constructively filed;  upon addressing the issue raised on appeal, the judgment is affirmed.

FACTS

The Orange County District Attorney filed an information charging Chavers with three counts of felony burglary.  (Pen.Code, § 459.)   The information further alleged Chavers had been convicted of two prior serious felonies within the meaning of Penal Code section 667, subdivision (a).²

I ***

II

At the sentencing on September 13, 1991, neither the court nor Chavers's counsel advised him he had a right to appeal within 60 days.   He learned of this possibility on November 19, 1991, from another inmate at Folsom State Prison and immediately wrote a letter to Appellate Defenders, Inc. inquiring about an appeal.   He was promptly informed on December 2, 1991, that no notice of appeal had been filed and the deadline for filing one expired on November 12.   However, they provided a blank form to him to file a notice of appeal, which Chavers completed and filed with the Orange County Superior Court Clerk.   The clerk received it on December 10, 1991, and filed it as if submitted in a timely fashion, in violation of the procedure detailed in California Rules of Court, rule 31(a).⁶

Chavers's trial counsel, Michael Cassidy, avers that he did not discuss any appellate issues with Chavers who appeared “visibly upset” at the conclusion of the sentencing.   He also avers that, in his opinion, no appealable issue was present due to Chavers's guilty plea to the three charged burglaries.⁷

The Attorney General responds by noting the failure to file a timely notice of appeal deprives this court of jurisdiction.   Chavers, petitioning this court for a writ of habeas corpus, now requests his notice of appeal be deemed constructively filed under the rule and rationale of In re Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97.   We grant his petition.

DISCUSSION

IIIThe Writ

 Chavers acted promptly after actually learning ⁸ he could appeal his judgment.   However, even this prompt response was too late.   He contends he was not informed that he had a right to appeal, and the trial court or counsel should have advised him of that right, he asserts, under the California Rules of Court.   Rule 470 ⁹ states:  “After imposing sentence or making an order deemed to be a final judgment in a criminal case upon conviction after trial, or after imposing sentence following a revocation of probation, except where the revocation is after the defendant's admission of violation of probation, the court shall advise the defendant of his or her right to appeal, of the necessary steps and time for taking an appeal, and of the right of an indigent defendant to have counsel appointed by the reviewing court․”

 In People v. Serrano (1973) 33 Cal.App.3d 331, 109 Cal.Rptr. 30, rule 250—subsequently renumbered as rule 470—was held to impose a duty upon the trial court to advise a defendant of the right to appeal whenever the conviction resulted from a trial, although no duty arises after a plea of guilty.  (Id. at pp. 337–338, 109 Cal.Rptr. 30.)   The Attorney General contends that Chavers's guilty plea to the underlying charges dispenses with the issue;  without the underlying charges, the enhancement allegation is automatically dismissed.   Chavers fully admitted the substantive crimes, but never pleaded guilty to the prior conviction allegation.   The issue he desires to raise on appeal is limited to concerns emanating from that allegation, and the court should have advised him of his right to appeal following his court trial on that prior conviction allegation.   Because the underlying charges were disposed of by a guilty plea, the enhancement was still very much at issue.   Chavers was entitled to the judicial rights accorded any defendant facing such an allegation.

Although the reason the deadline passed was not due to Chavers's reliance on representations of counsel or officials (see In re Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97;  6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 3226, pp. 3986–3987), justice mandates we accept his appeal as he pursued it in a prompt and diligent fashion upon learning of his right.   (Cf. In re Jordan (1992) 4 Cal.4th 116, 13 Cal.Rptr.2d 878, 840 P.2d 983.)   Here, had the lower court followed the mandate of rule 470, requiring it to advise him at judgment that he had the right to appeal the prior conviction finding within 60 days, the error would not have occurred at all.   When the deadline for filing is missed, but through no fault of the defendant, “ ‘[t]he interest of the state that justice be done in criminal cases reinforces [his] claim that his appeal be considered on the merits.’  [Citation.]”  (People v. Acosta (1969) 71 Cal.2d 683, 685, 78 Cal.Rptr. 864, 456 P.2d 136.)   We order Chavers's notice of appeal be deemed constructively filed.

IV

The Appeal ****

The judgment is affirmed.

FOOTNOTES

1.   This procedure is recommended in In re Benoit (1973) 10 Cal.3d 72, 78, 109 Cal.Rptr. 785, 514 P.2d 97.

2.   Penal Code section 667, subdivision (a) states:  “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately․”All section references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

6.   California Rules of Court, rule 31(a) states, in pertinent part, “․ an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 60 days after the rendition of the judgment․  [¶] Whenever a notice of appeal is received by the clerk of the superior court after the expiration of the period prescribed for filing such notice, the clerk shall mark it ‘Received (date) but not filed’ and advise the party seeking to file the notice that it was received but not filed because the period for filing notice of appeal had elapsed.  [¶] If the attorney for a defendant either files a notice of appeal for the defendant or assists the defendant in filing it, the attorney shall serve a copy on [various persons];  but the attorney's failure to do so does not affect the validity of the appeal․”All future rule references are to the California Rules of Court.

7.   Section 1240.1 imposes a duty on appointed trial counsel “to provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal․  The trial court may require trial counsel to certify that he or she has counseled the defendant as to whether arguably meritorious grounds for appeal exist at the time a notice of appeal is filed․  [¶] (b) It shall be the duty of every attorney representing an indigent defendant in any criminal, ․ case to execute and file on his or her client's behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment ․ to be appealed from, ․ or when directed to do so by a defendant having a right to appeal․”  (Italics added.)   It appears that trial counsel interpreted this duty to counsel and advise as inapplicable to situations involving a guilty plea.   Whether this interpretation is correct is irrelevant here, as Chavers proceeded to trial on the prior conviction allegation.   Thus, trial counsel was required to advise Chavers;  at the very least, he should have informed him of his educated opinion that no appellate issues existed.

8.   The Attorney General contends the trial court advised Chavers that he had sixty days within which to appeal his conviction during the Marsden hearing.   We note the court advised him of this procedural right during the discussion of Chavers's attack on the prior conviction.   In other words, the trial court noted that Chavers could have attacked the prior conviction within sixty days of entering that earlier plea;  a collateral attack on the prior conviction during the present case was belated.

9.   Rule 470 was formerly numbered rule 250.

FOOTNOTE.   See footnote *, ante.

SILLS, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.