IN THE SUPREME COURT OF CALIFORNIA
S099172
In re
Ct.App. 4/3 G028140
ESTEBAN NOE CHAVEZ,
) Orange
County
On Habeas Corpus.
Super. Ct. No. 99CF0109
When a defendant has pleaded guilty or no contest (nolo contendere) to a
criminal charge, the defendant may not appeal the judgment of conviction on
issues “going to the legality of the proceedings” unless, within 60 days of
rendition of the judgment, he or she files with the trial court a written statement
executed under oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds for appeal and, within 20 days after that filing, the
trial court executes and files a certificate of probable cause for appeal. (Pen.
Code, § 1237.5; Cal. Rules of Court, rule 31(d).)1 The issue in this case is
whether relief from default is available when a defendant fails to timely file the
statement of reasonable grounds for appeal required in order to obtain a certificate
of probable cause.
1
All further statutory references are to the Penal Code unless otherwise
specified. All further references to rules are to the California Rules of Court.
1
In the Court of Appeal, defendant filed a petition for writ of habeas corpus,
alleging that his statement of reasonable grounds for appeal should be deemed
timely filed under the common law doctrine recognizing the “constructive filing”
of an appeal. Instead, the Court of Appeal applied rule 45(e) to relieve defendant
from the default occasioned by his failure to timely file the statement of
reasonable grounds, based upon his demonstration of good cause, and granted his
petition for writ of habeas corpus.
In this court, the Attorney General asserts that defendant was not entitled to
file his belated appeal under either the theory of constructive filing or the
provision for relief from default. We conclude that (1) rule 45(e) does not
authorize the Court of Appeal to relieve a defendant from default resulting from
his or her failure to timely file a statement of reasonable grounds for appeal, and
thus we need not determine whether defendant established good cause for relief
from default; and (2) the doctrine of constructive filing of an appeal is inapplicable
in the circumstances of the present case. Defendant’s statement of reasonable
grounds for appeal not having been timely filed, we conclude that the judgment
granting defendant’s petition for writ of habeas corpus should be reversed.
I
In January 1999, following the discovery by police officers of more than 30
grams of heroin inside his vehicle, defendant was arrested and charged by
information with possession for sale of a controlled substance (Health & Saf.
Code, § 11351) and transportation of a controlled substance (Health & Saf. Code,
§ 11352, subd. (a)). It was alleged that defendant possessed for sale in excess of
14.25 grams of a substance containing heroin (Health & Saf. Code, § 11352.5,
subd. (1)), that he was ineligible for probation (§ 1203.07, subd. (a)(1)), and that
he had suffered a prior felony conviction (§§ 192, subd. (a), 667, subds. (d) &
(e)(1), 1170.12, subds. (b) & (c)(1)).
2
On October 13, 1999, on the eve of trial and while represented by attorney
Ruben Salgado, defendant entered into a plea agreement, pleading guilty to all
charges on the condition that he would be sentenced to a term of imprisonment of
no more than eight years. The terms of the plea agreement provided that
defendant was relinquishing his right to challenge on appeal the denial of his
motion to suppress evidence pursuant to section 1538.5.
On January 28, 2000, represented by newly substituted attorney Robert
Weinburg, defendant moved to withdraw his plea of guilty on the ground that at
the time of his plea, he had not been made aware that the prosecution at trial
would have to establish beyond a reasonable doubt that he possessed the heroin
for sale. On February 25, 2000, the trial court denied the motion and, pursuant to
the terms of the plea agreement, sentenced defendant to a term of eight years in
prison, consisting of twice the midterm of four years on the count of transportation
of a controlled substance. The trial court stayed imposition of sentence on the
other count of possession for sale of a controlled substance.
Defendant did not request that either attorney file a notice of appeal or a
statement of reasonable grounds for appeal during the time between the date of the
guilty plea and the date of the sentencing hearing. Several days following the
sentencing hearing, defendant’s family members urged to him to retain other
counsel. On his behalf, defendant’s aunt contacted Attorney Michael Garey. On
March 6, 2000, Attorney Garey visited defendant in prison. Garey agreed to
review defendant’s file to determine whether to represent defendant on appeal, but
did not agree to represent defendant in an appeal or to file any documents on his
behalf. On April 24, 2000, one day prior to the expiration of the 60-day period in
which to file a statement of reasonable grounds for appeal, Attorney Garey
informed defendant’s aunt that Garey did not believe adequate grounds existed to
appeal from the judgment, and he declined to represent defendant.
3
On May 26, 2000, defendant forwarded to the California Appellate Project
a motion to file a “belated notice of appeal.” Defendant explained that in prison
his receipt of mail was delayed up to three weeks, that he had not been permitted
to use a telephone, and that only recently had he been advised in correspondence
from his family that Attorney Garey had declined to represent him on appeal. On
June 5, 2000, the California Appellate Project forwarded defendant’s motion to
Appellate Defenders, Inc.
On October 25, 2000, with the assistance of Appellate Defenders, Inc.,
defendant filed a petition for a writ of habeas corpus in the Court of Appeal.
Defendant alleged that he had failed to timely file the statement of reasonable
grounds for appeal because of the conduct of Attorney Garey, and that, therefore,
pursuant to the doctrine of constructive filing, defendant’s statement of reasonable
grounds should be deemed timely filed. The Court of Appeal determined instead
that defendant, having shown good cause, was entitled to relief from default under
rule 45(e), and granted the relief sought. The Attorney General petitioned this
court for review. We reverse the judgment of the Court of Appeal.
II
A
In order to place our discussion in context, we note the distinction between
an appeal from a judgment of conviction following a plea of not guilty and trial,
and an appeal from a judgment of conviction following a plea of guilty or no
contest. When a defendant pleads not guilty and is convicted as the result of a
trial, in general any issue bearing on the determination of guilt and apparent from
the record is cognizable on appeal. (See § 1237.) By contrast, when a defendant
pleads guilty or no contest and is convicted without a trial, only limited issues are
cognizable on appeal. A guilty plea admits every element of the charged offense
and constitutes a conviction (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-
1178 (Hoffard); People v. Laudermilk (1967) 67 Cal.2d 272, 281), and
4
consequently issues that concern the determination of guilt or innocence are not
cognizable. (Hoffard, supra, 10 Cal.4th at p. 1178; People v. Ribero (1971) 4
Cal.3d 55, 63 (Ribero).) Instead, appellate review is limited to issues that concern
the “jurisdiction of the court or the legality of the proceedings, including the
constitutional validity of the plea.” (Hoffard, supra, 10 Cal.4th at p. 1178; see
People v. Kaanehe (1977) 19 Cal.3d 1, 9; Ribero, supra, 4 Cal.3d at p. 63.)2
These distinctions between an appeal from a final judgment of conviction
following a plea of not guilty and trial, and an appeal from a final judgment of
conviction following a plea of guilty or no contest, are reflected in distinct but
analogous statutes and related rules of court defining the procedure applicable to
the taking of each type of appeal.
In the case of a judgment of conviction following a plea of not guilty and
trial, section 1237, subdivision (a), generally authorizes an appeal without
imposing any limitations on subject matter. Rule 31(a) sets forth the means to
appeal, as well as the deadline — filing a notice of appeal in the superior court
within 60 days after rendition of the judgment of conviction. (See § 1239,
subd. (a).)
As we recently explained in People v. Mendez (1999) 19 Cal.4th 1084
(Mendez), the sole required procedural step of filing a notice of appeal is critical to
2 In
Ribero, supra, 4 Cal.3d at page 63, we enumerated the issues that, by the
time of our decision, had been determined to be appealable following the entry of
a plea of guilty or no contest: “insanity at the time of the plea, ineffective waiver
of constitutional rights, ineffective assistance of counsel, a plea obtained by
misrepresentation, or other abuse of discretion in denying a motion to withdraw a
guilty plea. ” (Citations omitted.) In subsequent decisions, the Courts of Appeal
have found additional issues to be appealable, including the denial of pretrial
diversion, the denial of a motion to dismiss based upon collateral estoppel, the
failure to seek restitution prior to the filing of criminal charges of welfare fraud,
and violation of the interstate agreement on detainers. (People v. Meyer (1986)
183 Cal.App.3d 1150, 1157-1158.)
5
rendering the appeal operative following a judgment of conviction. In general, a
timely notice of appeal is “ ‘essential to appellate jurisdiction.’ (6 Witkin &
Epstein, Cal. Criminal Law (2d ed. 1989) Appeal, § 3220, p. 3979.) It largely
divests the superior court of jurisdiction and vests it in the Court of Appeal. (Id.,
§§ 3135-3136, pp. 3874-3876.) 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 of a party or on its own motion.’ (Id., § 3220, p. 3979.) The
purpose of the requirement of a timely notice of appeal is, self-evidently, to further
the finality of judgments by causing the defendant to take an appeal expeditiously
or not at all.” (Mendez, supra, 19 Cal.4th at p. 1094.)
In the case of a judgment of conviction following a plea of guilty or no
contest, section 1237.5 authorizes an appeal only as to a particular category of
issues and requires that additional procedural steps be taken. That statute
provides: “No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere, or a revocation of probation
following an admission of violation, except where both of the following are met:
[¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional,
or other grounds going to the legality of the proceedings. [¶] (b) The trial court
has executed and filed a certificate of probable cause for such appeal with the
clerk of the court.”
Rule 31(d) sets forth the applicable deadline, as well as other conditions,
providing in part: “If a judgment of conviction is entered upon a plea of guilty or
nolo contendere, the defendant shall, within 60 days after the judgment is
rendered, file as an intended notice of appeal the statement required by section
1237.5 of the Penal Code; but the appeal shall not be operative unless the trial
court executes and files the certificate of probable cause required by that section.
6
Within 20 days after the defendant files the statement the trial court shall execute
and file either a certificate of probable cause or an order denying a certificate and
shall forthwith notify the parties of the granting or denial of the certificate.”3
In the case of an appeal from a judgment of conviction following a plea of
guilty or no contest, as we previously have explained, the requirement of a
certificate of probable cause is intended “ ‘to promote judicial economy’ [citation]
‘by screening out wholly frivolous guilty [and no contest] plea appeals before time
and money are spent’ on such matters as the preparation of the record on appeal
[citation], the appointment of appellate counsel [citation], and, of course,
consideration and decision of the appeal itself.” (Mendez, supra, 19 Cal.4th at p.
1095; Panizzon, supra, 13 Cal.4th at pp. 75-76; Hoffard, supra, 10 Cal. 4th at p.
1179.)
In such an appeal raising so-called certificate issues the certificate of
probable cause must be obtained regardless of other procedural challenges being
3
Notwithstanding the broad language of the requirement in section 1237.5
that the defendant obtain a certificate, exceptions to the requirement, for issues
related to search and seizure and postplea proceedings regarding the degree of the
offense and the determination of penalty, also are set forth in rule 31(d). (Mendez,
supra, 19 Cal.4th 1084, 1096-1097; People v. Lloyd (1998) 17 Cal.4th 658, 664
(Lloyd); People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon); People v.
Kaanehe, supra, 19 Cal.3d 1, 8.) If an “appeal from a judgment of conviction
entered upon a plea of guilty or nolo contendere is based solely upon grounds
(1) occurring after entry of the plea which do not challenge its validity or
(2) involving a search or seizure, the validity of which was contested pursuant to
section 1538.5 . . . , the provisions of section 1237.5 . . . requiring a statement by
the defendant and a certificate of probable cause by the trial court are inapplicable
. . . .” (Rule 31(d).) In that case, the notice of appeal must state it is based upon
such a ground in order to render the appeal operative.
Nonetheless, “a challenge to a negotiated sentence imposed as part of a plea
bargain is properly viewed as a challenge to the validity of the plea itself.
Therefore, it [is] incumbent upon [such a] defendant to seek and obtain a probable
(Footnote continued on next page.)
7
made. For example, a defendant who has filed a motion to withdraw a guilty plea
that has been denied by the trial court still must secure a certificate of probable
cause in order to challenge on appeal the validity of the guilty plea. (In re Brown
(1973) 9 Cal.3d 679, 682-683; see Ribero, supra, 4 Cal.3d at p. 63.) A defendant
who challenges the validity of such a plea on the ground that trial counsel
rendered ineffective assistance in advice regarding the plea may not circumvent
the requirements of section 1237.5 by seeking a writ of habeas corpus. (In re
Brown, supra, 9 Cal.3d at p. 683; see Ribero, supra, 4 Cal.3d at pp. 62-63.)
In addition, as we repeatedly have advised, a defendant seeking appellate
review following a plea of guilty or no contest must fully and timely comply with
both section 1237.5 and rule 31(d). A “defendant may not obtain review of
certificate issues unless he has complied with section 1237.5 and rule 31(d), first
paragraph, fully, and, specifically, in a timely fashion. . . . ” (Mendez, supra, 19
Cal.4th at p. 1099, citing People v. Breckenridge (1992) 5 Cal.App.4th 1096
(Breckenridge).) When a defendant has failed to comply with the requirements of
section 1237.5 and rule 31(d), the Court of Appeal “generally may not proceed to
the merits of the appeal, but must order dismissal . . . . ” (Mendez, supra, 19
Cal.4th at pp. 1096, 1099; Panizzon, supra, 13 Cal.4th 68, 75.)
Notwithstanding our repeated admonitions that a defendant must fully and
in a timely fashion comply with section 1237.5 and rule 31(d), defendants have
sought exemption from the requirement of full and timely compliance by invoking
rules or other authority not squarely addressed in our prior decisions. We now
consider the efficacy of the two theories relied upon in the present case to exempt
(Footnote continued from previous page.)
cause certificate in order to attack the sentence on appeal.” (Panizzon, supra, 13
Cal.4th at p. 79; cf., Lloyd, supra, 17 Cal.4th 658, 664-666.)
8
defendant from the requirement that he timely file a statement of reasonable
grounds for appeal in order to secure a certificate of probable cause.
B
First we examine whether, as the Court of Appeal concluded, defendant’s
failure to timely file a statement of reasonable grounds for appeal in order to
obtain a certificate of probable cause may be excused pursuant to rule 45(e). That
rule provides in part: “The reviewing court for good cause may relieve a party
from a default occasioned by any failure to comply with these rules, except the
failure to give timely notice of appeal.” (Italics added.)
In general, rule 45(e) enables the appellate court to provide relief to a party
who fails to comply with the appellate rules, thus avoiding the consequences of
default, when the party is able to demonstrate good cause for its failure to comply.
No relief from default may be granted for failure timely to file a notice of appeal.
In specifically exempting the requirement that a party timely file a notice of appeal
from rule 45(e)’s provision of relief from the other appellate requirements of the
Rules of Court, that rule essentially delineates an “exception to the exception”
from procedural default for a particular type of default. The “inexcusable” nature
of delay in taking an appeal, thus recognized in rule 45(e), comports with the
fundamental jurisdictional nature of the notice of appeal. (See Mendez, supra, 19
Cal.4th at p. 1094; accord, Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th
357, 361 [in civil action, rule 45(e) did not afford relief from jurisdictional
necessity of timely filed notice of appeal]; 6 Witkin & Epstein, Cal. Criminal Law,
supra, § 3220, p. 3979.)
We now consider the relationship between the relevant rules of court. By
its terms, rule 45(e) may not be utilized to relieve a party from default for failure
to timely file a notice of appeal. In an appeal following a plea of guilty or no
contest, rule 31(d) by its terms directs the defendant to “file as an intended notice
of appeal the statement required by section 1237.5.” (Italics added.) The question
9
arises whether the exception for timely notice of appeal recognized in the
discretionary relief otherwise authorized by rule 45(e) includes the timely filing
of a statement of reasonable grounds for appeal. We have determined that, for
purposes of rule 45(e), filing a statement of reasonable grounds for appeal is the
equivalent of filing a notice of appeal, and consequently that this rule does not
afford relief from default in timely filing the required statement.
Our conclusion is based upon the evident correspondence between the
statutes and rules governing the two types of appeals. As we have seen, section
1237, as implemented by rule 31(a), authorizes a party to file a notice of appeal
but also requires that the party do so, if at all, within 60 days of rendition of the
judgment of conviction in order to vest jurisdiction in the appellate court.
Similarly, section 1237.5, as implemented by rule 31(d), authorizes a party
pleading guilty or no contest to file a statement of reasonable grounds for appeal,
but also requires that the party do so, if at all, within 60 days of rendition of the
judgment. The latter filing has the same effect in vesting jurisdiction in the
appellate court. It follows that the timely filing of a statement of reasonable
grounds may no more be excused than the timely filing of a notice of appeal.4
That rationale is not undermined in the least by the circumstance that a
party raising so-called certificate issues is required to use a form — a statement of
reasonable grounds — different from the notice of appeal. In view of the
substantial functional identity of these filings under the two types of procedures,
an appeal initiated by the filing of a statement of reasonable grounds must be
4
The filing of a statement of reasonable grounds initiates an appeal
following a plea of guilty or no contest. The filing by the trial court of the
certificate of probable cause acts to make the appeal operative. (Rule 31(d); see
Lloyd, supra, 17 Cal.4th 658, 663; Panizzon, supra, 13 Cal.4th at p. 75.) In the
present case we are concerned with the timely filing of the statement of reasonable
grounds.
10
regarded as the equivalent of an appeal initiated by the filing of a notice of appeal.
Accordingly, both types of appeal must be initiated by timely filings, and both are
excluded from the provision offering relief from default under rule 45(e) in the
event of “good cause.”
Our conclusion also is premised upon considerations of policy. Because
the special procedures applicable in the case of an appeal from a judgment of
conviction following a plea of guilty or no contest are intended to promote judicial
economy by screening out wholly frivolous appeals prior to the commitment of
economic and legal resources to such matters (Mendez, supra, 19 Cal.4th at
p. 1095; Panizzon, supra, 13 Cal.4th at pp. 75-76), such an appeal should be
accorded less leniency than other appeals, rather than more, when we consider
possible exemption from a procedural requirement. If the special procedures
applicable to such an appeal are intended to promote finality of judgment, granting
relief from procedural deadlines is even less appropriate in these cases.5
Our conclusion is further supported by the general considerations that guide
application of the rules of court promulgated by the Judicial Council pursuant to
its authority under California Constitution, article VI, section 6, to adopt “rules for
court administration, practice and procedure.” (See Snukal v. Flightways
5
Strict adherence to procedural deadlines and other requirements governing
appeals that emanate from judgments entered upon pleas of guilty or no contest is
vital, in view of the circumstance that such judgments represent the vast majority
of felony and misdemeanor dispositions in criminal cases. In fiscal year 2000-
2001, of the total number of felony dispositions consisting of felony convictions,
less than five percent followed a trial by the court or by a jury, and of the total
number of felony dispositions consisting of reductions to misdemeanor
convictions, less than three percent followed court or jury trial. Similarly, of the
total number of misdemeanor dispositions consisting of convictions, less than
three percent followed court or jury trial. (Judicial Council of Cal., Court
Statistics Rep., Statewide Caseload Trends, 1991-1992 Through 2000-2001 (2002)
pp. 51-53.)
11
Manufacturing, Inc. (2000) 23 Cal.4th 754, 762.) The rules of court are intended
to refine and explain the procedure set forth in the statutory scheme (Mendez,
supra, 19 Cal.4th at pp. 1093-1094; Butterfield v. Butterfield (1934) 1 Cal.2d 227,
228), consistently with legislative and constitutional law (In re Dorothy B. (1986)
182 Cal.App.3d 509, 516; Paul D. v. Superior Court (1984) 158 Cal.App.3d 838,
841). Rule 45(e) is among those appellate rules for the Supreme Court and the
Courts of Appeal that have general application in both civil and criminal cases.
Consistent with that status, the rule may not be construed to authorize a separate
waiver in the case of a particular type of criminal appeal.
The foregoing discussion reveals the common jurisdictional function served
by filing a notice of appeal pursuant to section 1237 and filing a statement of
reasonable grounds pursuant to section 1237.5. We have noted the common time
period in rule 31(a) and (d) applicable to each type of filing. To construe rule
45(e) as forbidding a reviewing court from relieving a party from the
consequences of its failure to timely file a notice in an appeal authorized by
section 1237, but enabling the reviewing court to relieve a party from the
consequences of its failure to timely file the statement of reasonable grounds
required in an appeal authorized by section 1237.5, would be contrary to the
common elements of the authorizing statutes and implementing rules and contrary
to their common purpose of providing precise and definitive limitations on the
right to appeal.
Such a construction of rule 45(e) also would be entirely incompatible with
the more limited nature of an appeal following a plea of guilty or no contest, a
circumstance suggesting that, if anything, less leniency is to be accorded a
defendant who fails to comply with the greater procedural restrictions governing
that type of appeal. Finally, such a construction would be unreasonable in view of
rule 45(e)’s general application to appellate court review of civil and criminal
cases.
12
In reaching a contrary conclusion in the present case, the Court of Appeal
followed the rationale of People v. Sturns (2000) 77 Cal.App.4th 1382 (Sturns).
In that case, the Court of Appeal stated that rule 45(e) encompassed “leave to file a
statement of certificate issues beyond the time limit established by rule 31(d) . . .
upon a showing of good cause.” (Id. at p. 1391 & fn. 5.) The court in Sturns did
not grant the defendant relief from default, however, because he failed to justify
his delay of several months between discovering that his trial attorney had failed
to timely file a statement of reasonable grounds, and the date on which relief from
default was sought. (Id. at p. 1398; see also Breckenridge, supra, 5 Cal.App.4th
1096, 1101-1103 [assuming applicability of rule 45(e) and denying relief on the
facts of that case].)
In the present case the Court of Appeal invoked rule 45(e) to relieve
defendant from the default caused by his failure to timely file his statement of
reasonable grounds. Despite the circumstance that Attorney Garey never actually
represented defendant, the Court of Appeal decided that defendant’s default
resulted from the attorney’s delay in reviewing defendant’s case and in informing
him of his decision not to represent defendant. The Court of Appeal observed
that, upon learning of the attorney’s decision, defendant was diligent in seeking
relief from default and demonstrated good cause for the delay.
As we have explained above, this interpretation of rule 45(e) ignores the
specific function of the statement of reasonable grounds as a notice of appeal
vesting jurisdiction in the reviewing court. It also is at odds with the general
legislative intent, reflected in the creation of separate but analogous statutory
provisions and implementing rules of court, to place greater limitations on the
appeal process governing a defendant who pleads guilty or no contest than on the
appeal process governing a defendant who pleads not guilty. The Court of
Appeal’s interpretation fails to reflect the function of this rule of general
application on appeal in providing common standards for analogous appeals.
13
In addition, the decisions of the Courts of Appeal in the present case and in
Sturns ultimately rely upon authority that interpreted former versions of the
applicable provisions. In Sturns, the court cited Ribero, supra, 4 Cal.3d 55, 63,
for the proposition that a reviewing court may, when a showing of good cause is
made, relieve a defendant from default in timely filing a statement of reasonable
grounds for appeal. (Sturns, supra, 77 Cal.App.4th 1382, 1391.) As respondent
correctly points out, at the time of our decision in Ribero and prior to amendment
on January 1, 1972, rule 31(a) and (d) provided a 10-day filing period, both for a
notice of appeal and a statement of reasonable grounds for appeal and in view
of that shorter filing period in either case expressly authorized the defendant to
petition the reviewing court for relief from default in timely filing the appeal. (In
re Benoit (1973) 10 Cal.3d 72, 84-85, fn. 12 (Benoit); Historical Notes, 23 pt. 1
West’s Ann. Codes, Rules (1996 ed.) foll. rule 31, pp. 323-324.)
Effective January 1, 1972, however, rule 31(a) and (d) both were amended
to extend from 10 days to 60 days the period in which to file, respectively, a notice
of appeal and a statement of reasonable grounds for appeal. The same
amendments eliminated the provisions permitting the reviewing court to grant
relief from default when a defendant could establish an appropriate excuse for the
delay. (Benoit, supra, 10 Cal.3d 72, 84, fn. 12.) As the court in Sturns
recognized, our discussion in Ribero of the possibility of relief from default was
premised upon the former express provisions of rule 31 that were necessitated by
the former, shorter filing period. (Sturns, supra, 77 Cal.App.4th at p. 1395.)
We acknowledge that, as the Court of Appeal in the present case observed,
in People v. Jones (1995) 10 Cal.4th 1102, 1112, footnote 5 (Jones), decided after
the above described modification to the rules of court, we commented in passing
(citing Ribero, supra, 4 Cal.3d 55) that a defendant may obtain relief from default
in failing to timely file a statement of reasonable grounds for appeal. (See Sturns,
supra, 77 Cal.App.4th at p. 1391 & fn. 5.) In Jones we made that observation
14
without appearing to recognize that the rules underlying our decision in Ribero
subsequently were amended to eliminate the language supporting the availability
of such relief.
As is well established, a case is authority only for a proposition actually
considered and decided therein. (People v. Mendoza (2000) 23 Cal.4th 896, 915;
Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) In Jones, we determined only
that rule 31(d) does not govern the cognizability of noncertificate issues in an
operative appeal. (Jones, supra, 10 Cal.4th at pp. 1112-1113.) Accordingly, the
foregoing comment in Jones is dictum. In order to eliminate any further
uncertainty, we disapprove that observation in Jones, supra, 10 Cal.4th at page
1112, footnote 5.
To summarize, it is evident that in the context of an appeal from a judgment
of conviction following a plea of guilty or no contest, a statement of reasonable
grounds is intended to be, and is, a notice of appeal. As such, the untimely filing
of a statement of reasonable grounds is subject to the same exception to the
authority of a reviewing court to grant relief from default, under rule 45(e), that
applies to the untimely filing of a notice of appeal. Because we conclude that the
reviewing court was not authorized by rule 45(e) to relieve defendant from the
default occasioned by his failure to timely file a statement of reasonable grounds
for appeal, we need not, and do not, determine whether he demonstrated good
cause for the delay in filing his statement.6
C
Defendant, relying upon Benoit, supra, 10 Cal.3d 72, contended in the
Court of Appeal, as he does in this court, that his statement of reasonable grounds
6 We
disapprove
Sturns, supra, 77 Cal.App.4th 1382, and Breckenridge,
supra, 5 Cal.App.4th 1096, 1101-1103, to the extent they are inconsistent with the
conclusion we reach in the present case.
15
for appeal should be deemed timely filed under the doctrine of constructive filing.
We originally enunciated that doctrine in People v. Slobodion (1947) 30 Cal.2d
362, 366-367, where we held that because the defendant delivered a notice of
appeal to state prison employees for mailing six days prior to expiration of the
period prescribed for filing an appeal, he had constructively filed the notice
within the applicable period, notwithstanding the negligent delay of the prison
employees in mailing the notice only after the specified time had expired.
In
Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669, we
observed that Benoit extended the principle of constructive filing announced in
People v. Slobodion, supra, 30 Cal.2d at page 367, “to situations wherein an
incarcerated criminal appellant has made arrangements with his attorney for the
filing of a timely appeal and has displayed diligent but futile efforts in seeking to
insure that the attorney has carried out his responsibility.” In Benoit, we
considered the petitions for writ of habeas corpus of two defendants who claimed
that, as prisoners, they had relied upon their trial attorneys’ express agreements to
timely file notices of appeal and that the attorneys had failed to do so. Rejecting
the argument that the 1972 amendment to rule 31(a) had abrogated the doctrine of
constructive filing (Benoit, supra, 10 Cal.3d at pp. 78-85), we held that the
doctrine applied when the untimely filing of a notice of appeal was due to certain
negligence of trial counsel. (Id. at pp. 85-89; see In re Jordan (1992) 4 Cal.4th
116, 125-126 (Jordan).)7
7
The Attorney General contends that the Benoit doctrine of constructive
filing should not be extended to the timely filing of a statement of reasonable
grounds for appeal in any case, and suggests that only the doctrine of constructive
filing based upon a theory of estoppel may apply when the failure to timely file the
statement arises through the inaction of state officials. As we determine below,
the doctrine of constructive filing discussed in Benoit does not apply in the present
case, because its criteria have not been satisfied. We need not, and therefore do
(Footnote continued on next page.)
16
In
Benoit, we applied the doctrine of constructive filing based upon a
promise or representation made by each defendant’s attorney that he would timely
file a notice of appeal on his client’s behalf. (Benoit, supra, 10 Cal.3d at p. 86-
87.) We relied in part upon the circumstance that the assurances had been made
by the defendants’ trial counsel, noting that “the prisoner would be more justified
in relying on his counsel who had represented him and might have some
continuous concern for him. . . .” (Id. at p. 86.)
By contrast, in the present case defendant did not seek and did not receive
any assurances from his original or substituted trial counsel that counsel would
prepare or file a written statement of reasonable grounds for appeal. Defendant
terminated his representation by appointed counsel, and his family explored the
possibility of representation by retained counsel. Attorney Garey, far from
assuring defendant or his family that he would prepare or file a statement of
reasonable grounds for appeal, informed members of defendant’s family of his
uncertainty concerning whether he wished to represent defendant. Attorney Garey
did not agree to represent, or in fact represent, defendant at any time.
It is evident that none of the criteria for application of the principle of
constructive filing are present in defendant’s case, and accordingly his statement
of reasonable grounds for appeal may not be deemed constructively filed pursuant
to Benoit. We expressly decline to extend the holding of that case to situations in
which an attorney not only does not agree to prepare or file a statement of
reasonable grounds for appeal, but also does not agree to represent the defendant.
When, as in the present case, the only delay attributable to the attorney consists of
failing to inform the defendant as early as possible that he or she does not agree to
(Footnote continued from previous page.)
not, decide whether the Benoit doctrine is inapplicable in every case involving the
timeliness of filing a statement of reasonable grounds for appeal.
17
represent the defendant on appeal, the doctrine of constructive filing of a notice of
appeal does not apply.
Defendant also urges that rule 31 reflects an intention that the rule will be
applied in a liberal manner. In particular, he observes that rule 31(e) extends
beyond 60 days the time period in which to file a notice of appeal when the notice
was mailed by an incarcerated defendant and it is clear from examination of the
mailing envelope that it “was mailed or delivered to custodial officials for
mailing” within the 60-day time limit. Defendant also notes the provision in rule
31(e) that it is “intended to enlarge the authority of the clerk to file a notice of
appeal under the stated circumstances. It is not intended to limit the appeal rights
of the defendant under the ‘prison-delivery rule,’ as stated in In re Jordan (1992) 4
Cal.4th 116, or under other applicable case law.”
Neither rule 31(e) nor the “prison-delivery rule” as stated in Jordan assists
defendant in the present case. By its terms, rule 31(e) enlarges the authority of the
clerk of the court to file a notice of appeal in circumstances in which it is clear that
the defendant mailed or delivered the notice of appeal for mailing by prison
officials within the 60-day limit. In Jordan, supra, 4 Cal.4th 116, 124-130, we
reaffirmed the validity of the prison-delivery rule, pursuant to which an
incarcerated defendant’s notice of appeal is deemed timely filed if delivered to
prison authorities within the 60-day filing period provided in rule 31(a).
Assuming, for the sake of argument, that these standards apply equally to a
statement of reasonable grounds for appeal, it is clear that defendant did not mail,
or deliver to prison authorities, his statement of reasonable grounds within 60 days
after rendition of the judgment of conviction.
As we have explained, the Court of Appeal was not authorized by rule
45(e) to relieve defendant from the default caused by his failure to timely file a
statement of reasonable grounds for appeal. Defendant’s statement of reasonable
18
grounds was not, and may not be deemed, constructively filed within the time
limit provided.
III
The judgment of the Court of Appeal granting defendant’s petition for writ
of habeas corpus is reversed.
GEORGE, C.J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Chavez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 89 Cal.App.4th 1183
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S099172Date Filed: May 15, 2003
__________________________________________________________________________________
Court:
Superior CourtCounty: Orange County
Judge: Richard W. Stanford, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
David K. Rankin, under appointment by the Supreme Court, for Petitioner Esteban Noe Chavez.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert Anderson and David P. Druliner, Chief Assistant AttorneysGeneral, Garty W. Schons, Assistant Attorney General, Laura Whitcomb Halgren, Steven T. Oetting,
Raquel M. Gonzalez and Kristine A. Gutierrez, Deputy Attorneys General, for Respondent the People.
20
Counsel who argued in Supreme Court (not intended for publication with opinion):
David K. RankinAppellate Defenders, Inc.
555 W. Beech St., No. 300
San Diego, CA 92101-2939
(619)696-0282
Kristine A. Gutierrez
Deputy Attorney General
Office of the Attorney General
110 W. “A” St.
San Diego, CA 92101
(619) 645-2028
21
Opinion Information
| Date: | Docket Number: |
| Thu, 05/15/2003 | S099172 |
Parties
| 1 | Chavez, Estaban Noe (Petitioner) Represented by David K. Rankin Appellate Defenders, Inc. 555 W. Beech Street, Suite 300 San Diego, CA |
| 2 | The People (Respondent) Represented by Kristine Alton Gutierrez Deputy Attorney General 110 West "A" Street, Suite 1100 San Diego, CA |
| Disposition | |
| May 15 2003 | Opinion: Reversed |
| Dockets | |
| Jul 18 2001 | Petition for review filed by AG for respondent (People). |
| Jul 19 2001 | Record requested |
| Jul 23 2001 | Received Court of Appeal record 1 volume |
| Aug 3 2001 | Answer to petition for review filed by counsel for petitioner Esteban Noe Chavez (filed in San Diego) |
| Sep 10 2001 | Time extended to grant or deny review to and including October 16, 2001. |
| Sep 26 2001 | Note: Votes: George, C.J., Kennard, Werdegar, Chin, Brown, JJS. |
| Sep 26 2001 | MPetition for Review Granted (criminal case) |
| Oct 4 2001 | Application for Extension of Time filed by Respondent People to file the Opening Brief on the Merits to and including 11/26/2001. |
| Oct 9 2001 | Extension of Time application Granted Respondent to and including 11/26/2001 to file the opening brief on the merits. |
| Oct 11 2001 | Counsel appointment order filed Appellate Defenders, Inc. for appellant Esteban Noe Chavez. Petitioner's brief on the merits [answer] shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Nov 21 2001 | Request for extension of time filed By counsel for respondent (The People) asking to December 26, 2001 to file respondent's opening brief on the merits. Granted -order being prepared. |
| Nov 27 2001 | Extension of time granted to December 26, 2001 to file respondent's opening brief on the merits. |
| Dec 21 2001 | Opening brief on the merits filed Respondent People's |
| Jan 24 2002 | Request for extension of time filed in San Diego by counsel for petitioner requesting time to 2/21/2002 to file the answer brief on the merits. |
| Jan 30 2002 | Extension of time granted petitioner to and including 2/21/2002 to file petitioner's answer brief on the merits. |
| Feb 21 2002 | Request for extension of time filed (second/received 2/19/2002 in San Diego) by petitioner seeking to 3/25/2002 to file the answer brief/merits |
| Feb 25 2002 | Extension of time granted petitioner to and including 3/25/2002 to file the answer brief on the merits |
| Mar 25 2002 | Answer brief on the merits filed in San Diego by counsel for petitioner |
| Apr 12 2002 | Reply brief filed (case fully briefed) in San Diego by AG-SD for respondent |
| Feb 3 2003 | Case ordered on calendar 3-12-03, 9am, S.F. |
| Mar 12 2003 | Cause argued and submitted |
| May 15 2003 | Opinion filed: Judgment reversed Majority Opinion by George, CJ., ----- Joined by Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Jun 17 2003 | Remittitur issued (criminal case) Certified copies mailed to Fourth Appellate District, Division Three. |
| Jun 17 2003 | Returned record G028140 [S099172] In re Estaban Noe Chavez on Habeas Corpus To: Fourth District, Division Three. |
| Jun 26 2003 | Received: Receipt for remittitur in S099172 (G028140) from Fourth District/Division Three, signedfor by Lee Kegley, Deputy Clerk. |
| Sep 23 2005 | Compensation awarded counsel Atty Rankin - Appellate Defenders, Inc |
| Briefs | |
| Dec 21 2001 | Opening brief on the merits filed |
| Mar 25 2002 | Answer brief on the merits filed |
| Apr 12 2002 | Reply brief filed (case fully briefed) |
