Opinion
FROEHLICH, J. Robert Douglas Snyder appeals from the judgment of conviction in case number CRN11888 (the drug counts). Snyder also appeals from the sentence imposed in case number CR87461 (the weapons count) following his guilty plea. The cases have been consolidated for purposes of appeal. With the concurrence of Acting Presiding Justice Work, the judgment based on the drug convictions is reversed and the matter is [485]remanded for new trial, while the judgment based on the weapons conviction is reversed solely for resentencing. Justice Benke dissents from these reversals. A majority created by the concurrence of Justice Benke concludes the People should be accorded a new 60-day period within which to file an appeal from the trial court order granting new trial which is thus reinstated. Acting Presiding Justice Work dissents from this extraordinary resurrection of appellate rights.
I
Factual and Procedural Background
A. The Drug Charges
On December 22, 1986, at approximately 7:30 p.m., Officer Armentano was dispatched to a residence in Escondido to respond to a shooting incident. Upon entering the residence the officer spotted a seriously wounded woman, apparently suffering from a gunshot wound to the head, lying on an upstairs “loft” area overlooking the main living area of the two-story residence. The officer conducted a brief “sweep search” of the residence to check for the possible presence of individuals other than the victim and the three men found at the residence on his arrival. He then secured the premises by moving those three men into the kitchen area.
A few minutes after Armentano had arrived, Sergeant Burkett arrived to photograph the crime scene and was briefed by Armentano on the facts of the incident and the results of the sweep search. Burkett proceeded upstairs to where the victim had been found in order to photograph the scene. He noted a trail of blood leading into an open doorway of a nearby bedroom. He followed the trail just far enough into the bedroom to determine that the trail stopped a few feet inside the doorway. While inside the doorway, he noticed various chemicals, glassware, scales and containers which he associated with and thought represented a clandestine lab for the manufacture of illegal drugs.
Based on his plain-view observations, Burkett called Detective Milks of the Special Investigations Narcotics Unit. Detective Milks arrived at approximately 8:10 p.m. and proceeded to the upstairs bedroom. He spotted the chemicals, glassware and equipment, which he also associated with a manufacturing operation for illegal narcotics, and then took a small scraping of some residue from a jar and tested it with a “Nar-Kit Junior Test Kit.” After the test yielded a positive reaction for amphetamine, Milks obtained a telephonic search warrant and (armed with this warrant) proceeded to search the premises.
[486]The search of the bedroom, bedroom closet and garage yielded solvents, substances, equipment, recipes and other literature useful in the manufacture of methamphetamine. The search also produced a gallon of liquid containing methamphetamine, two quart-size jars containing a substance determined to be unfinished methamphetamine, and a glass jar with a residue determined to be methamphetamine. Snyder admitted that he resided in the bedroom which yielded the majority of items seized.
On April 7, 1987, Snyder was charged by information with one count of violating Health and Safety Code section 11378 (possession of controlled substances for sale), one count of violating Health and Safety Code section 11377 (possession of controlled substances), one count of violating Health and Safety Code section 11379.6, subdivision (a) (manufacture of methamphetamine), and one count of violating Penal Code section 12220 (possession of a machine gun).1 Snyder’s pretrial motion to suppress the evidence, based on the alleged unlawful “search” of the premises by the officers before the warrant was issued, was denied.
On August 17, 1987, the date set for trial, the People filed an amended information, adding an allegation (in connection with the manufacturing count) that the volume and weight of the methamphetamine was more than three gallons of liquid or more than one pound of solid within the meaning of the enhancement provisions of Health and Safety Code section 11379.8, subdivision (a) (1). Following jury trial Snyder was convicted on all counts, and the jury returned a true finding on the volume/weight enhancement.
Snyder timely moved for a new trial, arguing that the volume/weight enhancement was improperly charged under ex post facto principles.2 He further argued that extensive expert testimony, directed solely at proving the enhancement, had been erroneously introduced because it was irrelevant to the other counts and was highly prejudicial to defendant’s case. The motion, originally scheduled for hearing October 21, 1987, was continued for two weeks to allow the People additional time to respond. The People failed to file written opposition, but nevertheless appeared, argued there was no prejudice, and orally sought to oppose the motion for new trial. The court, concluding there was prejudice from the erroneously admitted evidence, granted the motion for new trial.
[487]The People subsequently moved for reconsideration of the order granting a new trial, which Snyder opposed. The trial court granted the motion. It then reexamined the issue of whether Snyder was prejudiced by the admission of the expert testimony on the volume/weight of the methamphetamine and ultimately concluded there was no prejudice, vacating its previous order and entering a new order denying Snyder’s motion for a new trial. Snyder was subsequently sentenced on the drug charges to a five-year term on count three (designated as the principal count), and to two-year terms on each of the remaining three counts to be served concurrently with the principal count.
B. The Weapons Charge
On April 6, 1987, Snyder was arrested for possession of a sawed-oflf shotgun. Snyder pled guilty, but sentencing was continued until after the pending drug charges were adjudicated, since the results from the drug charges case were apparently pivotal to the probation officer’s decision on whether to recommend probation or prison on the weapons charge. After Snyder’s motion for new trial was denied following reconsideration, the probation officer recommended, and the court imposed, a two-year midterm on the weapons charge, to be served concurrently with the prison term imposed on the drug charges.
C. Contentions On Appeal
Snyder first urges that his conviction on the drug charges should be reversed because he was denied effective assistance of counsel. Alternatively, Snyder urges he should be granted a new trial on the drug charges, based on the court’s original order granting such a new trial, arguing the trial court erred by reconsidering its original order and entering a subsequent order denying a new trial. Finally, Snyder argues that if a retrial is ordered on the drug charges, sentencing on the weapons charge should be remanded because the sentencing choice was intimately tied to the convictions on the drug charges.
II
Discussion
A. Snyder Was Not Denied Effective Assistance of Counsel
Snyder first contends he was denied effective assistance of counsel because his attorney should have challenged, but failed to challenge, the [488]prewarrant “search” conducted by Milks,3 upon which the search warrant was ultimately issued. The burden is on Snyder affirmatively to show that his trial counsel failed to act with reasonable competence and diligence and that counsel’s negligence resulted in the withdrawal of a potentially meritorious defense. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) It is the latter prong which is fatal to Snyder’s contention, since a motion to suppress on the grounds that Milks’s search was unreasonable would have been fruitless.
The legality of the initial searches by Armentano and Burkett are unchallenged on appeal. While photographing evidence at the crime scene, Burkett followed a trail of blood to the doorway, from which he made the plain-view observation of vials, glassware and chemical containers associated with clandestine laboratories, and also observed residues of what appeared to be methamphetamine. Burkett called in Milks, who arrived at the scene 20 minutes later, made the same plain-view observations from the same vantage point as had Burkett, reached the same tentative conclusion as Burkett regarding the nature of the residues, and then conducted a test to verify that the residue was indeed methamphetamine.
Although Snyder argues Milks’s observations constituted an unreasonable search, strongly analogous authorities are to the contrary. In both People v. Plane (1969) 274 Cal.App.2d 1 [78 Cal.Rptr. 528], and more recently in People v. Duncan (1986) 42 Cal.3d 91 [227 Cal.Rptr. 654, 720 P.2d 2], similar challenges to a second officer’s observations as “unreasonable searches” were rejected. In both cases the first officer made plain-view observations of suspected felonious conduct and then called in a second officer to verify or invalidate his suspicions of the illegal nature of the material he observed. Both courts concluded that where, as here, the second officer’s observations are made at a time during which the first officer’s presence at the scene (and plain-view observations therefrom) is justified, the second officer’s observations are not an unreasonable search because “[t]he second officer’s entry went no further than that of the first officer, and was meant only to interpret what the first officer had already seen. The second officer’s entry was thus a minimal additional intrusion on the defendant’s privacy.” (Duncan, supra, 42 Cal.3d at p. 99; see also People v. Plane, supra, 274 Cal.App.2d at pp. 5-6.)
Based on Duncan and Plane, a motion to suppress Milks’s observations and its fruits would have had little chance of success, and trial counsel’s [489]failure to pursue an apparently fruitless motion did not deprive Snyder of effective assistance of counsel. (In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3 [161 Cal.Rptr. 24].)
B. The Trial Court Erred in Reconsidering and Vacating Its Previous Order Granting Snyder’s Motion for New Trial
Following his conviction on the drug charges, Snyder moved for a new trial, arguing that prejudicial testimony had been erroneously admitted.4 The hearing on Snyder’s motion was continued for two weeks to allow the People an opportunity to prepare opposition to the motion. At the continued hearing the court noted the People had filed no written opposition to the motion, and concluded their failure to file opposition constituted acquiescence in defendant’s motion. The court denied the People an opportunity to argue orally the issue of prejudice and, based on defendant’s motion and the absence of written opposition, found prejudice and granted a new trial.
The People promptly sought reconsideration of the order granting new trial, arguing there is no statute or rule of court requiring written opposition to a motion. The People further argued that the court erred in refusing to allow the People an opportunity to oppose orally the motion, and that it further erred by failing independently to examine and reweigh the evidence before reaching its decision. Over Snyder’s opposition the court granted the motion for reconsideration based on excusable neglect under Code of Civil Procedure section 473, vacated its previous order granting a new trial, and (following additional briefing) concluded the testimony of the expert was not sufficiently prejudicial to warrant a new trial. Accordingly, the court entered an order striking the enhancement, and thereafter denied the motion for new trial.
Snyder contends the trial court was without authority to reconsider its previous order granting a new trial. We agree. It is well established that subject to limited exceptions not applicable here,5 “ ‘ “ ‘[o]nce a motion [490]for a new trial has been ruled upon in a criminal case and an order made either granting or denying such application . . . the court is without authority to entertain a subsequent motion the object of which is to change or vacate its former order.”” [Citations.]” (People v. Lindsey (1969) 275 Cal.App.2d 340, 343 [79 Cal.Rptr. 880].) The California Supreme Court has consistently reached the same conclusion (see, e.g., In re Levi (1952) 39 Cal.2d 41, 45 [244 P.2d 403]; People v. Walker (1904) 142 Cal. 90, 92 [75 P. 658]; People v. Fice (1893) 97 Cal. 459, 460 [32 P. 531]), and the continuing vitality of the “no jurisdiction to reconsider order on new trial motion” rule was recently reaffirmed by one appellate court. (See People v. Hernandez (1988) 199 Cal.App.3d 768, 771-773 [245 Cal.Rptr. 156].) The proper remedy for the aggrieved party is to appeal, not to seek reconsideration. (See People v. Collins (1950) 97 Cal.App.2d 552, 554-555 [218 P.2d 87]; People v. Center (1882) 61 Cal. 191, 194.)
The People argue the so-called “Levi/Lindsey rule” should not be applied to this case, for two reasons. First, the People argue that the first order was a “nullity,” since the court failed to perform its duty independently to reweigh the evidence, and also failed to provide the People with their due process right to be heard on the merits. Because the order was a “nullity,” continues the argument, the subsequent hearing was in reality the first order, rather than a reconsideration of a prior order. We disagree. While the conduct cited by the People may well have been erroneous, and perhaps constituted an abuse of discretion justifying reversal, we are unaware of any authority holding that an erroneous ruling a fortiori renders the order wholly nugatory. That is, while the first order may have been reversible, it was not void ab initio.
The People alternatively urge that we follow People v. Stewart, supra, 202 Cal.App.3d 759, which “reexamined” the Levi/Lindsey rule and concluded the rule against reconsidering orders on new trial motions is directory rather than jurisdictional. Viewing the Levi/Lindsey rule as merely directory, the People contend the trial court had discretion to reconsider its previous ruling. We respectfully disagree with the Stewart court,6 because its reason[491]ing appears inconsistent with controlling Supreme Court precedent. While Stewart dismissed the “jurisdictional” language in Levi as mere dictum (see People v. Stewart, supra, 202 Cal.App.3d at p. 762), the Stewart court overlooked numerous earlier Supreme Court precedents in which the “jurisdictional” language was not dictum. (See People v. Walker, supra, 142 Cal. 90, 92; People v. Fice, supra, 97 Cal. 459, 460; and People v. Center, supra, 61 Cal. 191, 194.) Thus, even if Stewart correctly characterized the language in Levi as dictum, the earlier Supreme Court holdings from which Levi sprang remain binding upon our court.
Because we are bound by the decisions of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937]), we conclude the trial court’s order granting a new trial exhausted its authority on that issue, and the People’s remedy was to pursue the appellate rights provided by statute (see Pen. Code, § 1238, subd. (a) (3)) rather than seek to vacate the previously entered order.
C. The People May Appeal From the Order Granting New Trial
The net effect of our opinion is to reinstate the original order granting Snyder a new trial because the trial court acted in excess of its jurisdiction when it purported to reconsider its original ruling. However, the People should not be unfairly deprived of their right to prosecute an appeal from the original order granting a new trial. Although no appeal was taken from the original ruling, we conclude we are empowered to reinstate the People’s appellate rights under the doctrine of “constructive filing” as amplified in People v. Martin (1963) 60 Cal.2d 615 [35 Cal.Rptr. 769, 387 P.2d 585] and People v. Hales (1966) 244 Cal.App.2d 507 [53 Cal.Rptr. 161].
The doctrine of “constructive filing” permits, under very limited and unusual circumstances, an appeal to be prosecuted even though it was not filed within the normally jurisdictional 60-day time limit. This ameliorative doctrine springs from the recognition that delayed filings should be permitted where “slavish adherence to such deadlines . . . [would] violate[ ] [492]more basic justice” (Castro v. Superior Court (1974) 40 Cal.App.3d 614, 617 [115 Cal.Rptr. 312]), and where the cause of the delayed filing was not principally attributable to the fault of the appellants. (In re Benoit (1973) 10 Cal.3d 72, 86 [109 Cal.Rptr. 785, 514 P.2d 97].)
Snyder argues the “constructive filing” doctrine may not be applied to an appeal by the People, contending the doctrine was developed solely for the benefit of, and is only applicable to, incarcerated defendants who fail to perfect their appeal because of the fault of others (usually state agents). While these factors are “generally” found in constructive filing cases (In re Benoit, supra, 10 Cal.3d 72, 86), neither “incarceration” nor “fault of others” is an absolute prerequisite to its application. In People v. Martin, supra, 60 Cal.2d 615, there was no indication that defendant’s failure timely to file an appeal resulted from his incarceration, or even that he was jailed at the relevant times. And in Benoit the “fault” was attributable to appellant’s own attorneys, not to state agents or third parties; nevertheless the court applied the constructive filing doctrine.
We find nothing inherent in the constructive filing doctrine which precludes its application to the People, nor is there any principled reason to deny the People the same benefits accorded a defendant. The People are entitled to the same judicial impartiality, fairness and due process rights as defendants (People v. Beasley (1970) 5 Cal.App.3d 617, 630 [85 Cal.Rptr. 501]; People v. Arline (1970) 13 Cal.App.3d 200, 205 [91 Cal.Rptr. 520]; Department of Corrections v. Superior Court (Ayala) (1988) 199 Cal.App.3d 1087, 1092 [245 Cal.Rptr. 293]) so long as such equality of treatment does not otherwise trample on the special constitutional protections accorded criminal defendants. According the People equal access to the constructive filing doctrine in this case would do no injury to any specific constitutional rights to which the defendant is entitled.
We therefore review the facts of this case to determine whether the doctrine should be here applied. The Benoit court examined three general criteria to determine whether it was appropriate to invoke the constructive filing doctrine to permit a late-filed appeal: (1) Was the appellant diligent in asserting his challenge to the disputed ruling? (2) Was his failure timely to appeal the disputed ruling principally attributable to the fault of others, or to the conduct of others which lulled him into a false sense of security? and (3) Would permitting a late-filed appeal serve the interests of justice? (In re Benoit, supra, 10 Cal.3d at pp. 83-84, 86, 89.)
Our review of these factors convinces us that application of the doctrine is appropriate here. The People’s diligence is unquestioned. Within one week of the disputed ruling the People filed extensive points and author[493]ities to challenge and seek reversal of the ruling, and thereafter prosecuted a hearing on their challenge with all deliberate speed. The failure timely to appeal was primarily attributable to the error by counsel in seeking reconsideration rather than appeal7 (which, under Benoit, is cognizable as an excuse under compelling circumstances), and to the error of the court in assuming jurisdiction over the motion. If the court had dealt with the motion in a manner consistent with its lack of jurisdiction under the Levi/Lindsey rule and rejected it forthwith, there would have been ample remaining time for the People timely to appeal the original ruling. Instead, the People failed to file a timely appeal because they were “lulled into a false sense of security” by the court’s improper assertion of jurisdiction. At least two courts have concluded, on analogous facts, that a court’s improper assertion of jurisdiction can provide justification for permitting a late-filed appeal.8
In People v. Martin, supra, 60 Cal.2d 615, 618-619, the defendant’s failure to file resulted from the trial court’s agreeing to hear a new trial motion, when in fact it lacked jurisdiction to entertain such motion. The appellate court held the trial court’s conduct, which induced the filing error, should not cause the right to appeal to be forfeited.
The facts in People v. Hales (1966) 244 Cal.App.2d 507 [53 Cal.Rptr. 161] are remarkably similar to those of this case. In Hales a defendant [494]moved for a new trial after the court had already lost jurisdiction to consider the motion. However, because the court indicated it was sympathetic to the motion, the defendant (on advice of his counsel) dismissed his notice of appeal in order to revest the trial court with jurisdiction. The trial court then vacated the judgment and granted the motion for new trial. On appeal the appellate court first ruled that the trial court lacked jurisdiction to vacate the judgment or to grant the motion for new trial, and hence reinstated the judgment of conviction. (Id. at pp. 509-511.) However, recognizing that the trial court’s assumption of jurisdiction had misled the defendant into failing properly to appeal the judgment, and that injustice would result if the judgment were reinstated without allowing defendant an opportunity to appeal from such reinstated judgment, the Hales court invoked the constructive filing principles as amplified by People v. Martin and revived the defendant’s right to appeal from the reinstated judgment. (244 Cal.App.3d at p. 515.)
We believe the interests of justice in this case are similarly served by permitting the People an opportunity to appeal from the reinstated order. The defendant, convicted of several offenses by a jury, obtained a new trial based primarily on the trial court’s conclusion that the People’s failure to file written opposition to a new trial motion effectively waived the right to oppose such motion. Although the propriety of the ruling is not before us, it appears to be at least a novel basis for granting a new trial, particularly on the peculiar facts and procedural context of this case. We are reluctant to cause forfeiture of the People’s right to appellate review merely because the trial court (and indeed the defendant) erroneously assumed that a challenge to the order by motion for reconsideration was jurisdictionally proper, thereby lulling the People into forgoing an appeal of the order granting new trial.
D. The Sentence of the Weapons Charge Should Be Remanded for Reconsideration of the Appropriate Sentence in Light of the Disposition of the Drug Charges
Snyder was sentenced, following his guilty plea to the weapons charge, to the midterm of two years on that charge. The probation report on the weapons charge, which ultimately recommended imposition of the two-year midterm, had initially indicated probation would have been recommended on that charge in the absence of information on the drug charges, and therefore suggested that sentencing be held in abeyance until a ruling had been made on the new trial motion.
Snyder argues, in essence, that sentencing on the weapons charge was “infected” by the denial of his motion for new trial, which we have [495]concluded was in error. The People do not dispute this contention, nor do they argue it is unlikely that Snyder will receive a more favorable sentence in the absence of the error. Remand for a new probation report, and resentencing on the weapons charge, is therefore appropriate.
Disposition
The judgment on case number CRN11888 (the drug charges) is reversed with instructions (1) to vacate the order granting reconsideration; (2) to vacate the order denying new trial; and (3) to reinstate the order granting new trial. The People are granted leave to file a notice of appeal from the order granting new trial within 60 days after the remittitur is filed in the trial court.
The judgment on case number CR87461 (the weapons charge) is reversed solely for sentencing consistent with this opinion. In all other respects, that judgment is affirmed.
The April 7, 1987, information also charged Snyder with one count of violating Health and Safety Code section 11379 (selling or offering to sell a controlled substance). However, this count was subsequently dismissed on the People’s motion.
The enhancement statute, Health and Safety Code section 11379.8, was amended in 1986 to add methamphetamine as one of the controlled substances to which that enhancement applied. (See Stats. 1986, ch. 80, § 3.) Because it was not designated as emergency legislation, it became effective January 1, 1987, after the date the charged offense was committed, precluding its application on ex post facto grounds.
Snyder also argues trial counsel was ineffective because counsel only challenged the search pursuant to the warrant, placing the burden to show unreasonableness on Snyder and improperly relieving the People of their burden to show the prewarrant search was reasonable. However, our review indicates all parties understood that Snyder was challenging the prewarrant search, and the court properly placed the burden of proof upon the People to show its reasonableness.
Snyder correctly contended that the weight/volume enhancement was improperly charged in the information, based on ex post facto principles. Snyder argued that extensive expert testimony concerning the makeup and weights of various chemicals seized, principally directed at and relevant to the enhancement issues, should not have been admitted and had a necessarily prejudicial impact on the jury’s consideration of the other charges, such as the manufacturing and possession for sale counts.
An order on a motion for new trial may be reconsidered (1) where the ruling is immediately reconsidered before it has been fixed by entry in the minutes and before any further proceedings have transpired (People v. Hensel (1965) 233 Cal.App.2d 834 [43 Cal.Rptr. 865]); (2) in a furcated trial, where certain policy considerations render the general rule inapplicable (see People v. Risenhoover (1966) 240 Cal.App.2d 233, 234-236 [49 Cal.Rptr. 526]); or (3) where the order is entered inadvertently or prematurely (People v. Martin (1926) 199 Cal. 240, 242 [248 P. 908]). A fourth “exception,” the vitality of which remains untested, was [490]recently created to permit a new trial motion to be renewed where the original motion by defendant was denied and the second motion urges defendant had received ineffective assistance of counsel in connection with the first motion. (See People v. Stewart (1988) 202 Cal.App.3d 759, 763 [248 Cal.Rptr. 907].) While we question the reasoning of Stewart (see discussion infra at pp. 490-491), we do not necessarily disagree with the utility of the “exception” created by Stewart.
To the extent Stewart only carves a narrow exception to the general Levi/Lindsey jurisdictional rule, the Stewart exception may well strike an appropriate balance between policies and principles underlying Levi/Lindsey and the policies and principles outlined by the Supreme Court in People v. Fosselman (1983) 33 Cal.3d 572 [189 Cal.Rptr. 855, 659 P.2d 1144]. A policy fostered by Levi/Lindsey includes the promotion of judicial economy: It prohibits [491]repetitive new trial motions which could become “interminable.” (People v. Martin, supra, 199 Cal. at p. 242.) A countervailing interest, however, was expressed in Fosselman. The Supreme Court directed trial courts to determine, on motion for new trial where possible, whether a defendant’s constitutional right to effective counsel had been violated. The Fosselman court recognized the trial court was the preferred decisionmaker on this issue, both because the trial court had actually observed counsel’s trial performance and because judicial economy would be promoted by avoiding unnecessary appellate review or habeas corpus proceedings. (33 Cal.3d at pp. 582-583.) Stewart held that an exception to the general Levi/Lindsey rule, accommodating the Fosselman directives, should be permitted since both shared the common interest of fostering judicial economy. (People v. Stewart, supra, 202 Cal.App.3d at p. 763.)
Indeed, all counsel apparently believed the court had jurisdiction to reconsider its prior motion, since defense counsel never challenged the jurisdictional propriety of the motion for reconsideration.
We acknowledge, of course, that at least two courts have refused to “excuse” a late-filed notice of appeal under circumstances analogous to our case, i.e., where the appellant used the excuse he was “misled” into a delayed filing because the trial court erroneously agreed to consider a second (but jurisdictionally invalid) motion for new trial. (See Wenzoski v. Central Banking System, Inc. (1987) 43 Cal.3d 539, 542 [237 Cal.Rptr. 167, 736 P.2d 753] [misapprehension by trial court and parties of ability to consider second motion does not extend time to appeal from denial of the first, and only jurisdictionally valid, new trial motion]; Ten Eyck v. Industrial Forklifts (1989) 216 Cal.App.3d 540, 545-546 [265 Cal.Rptr. 29].) However, both cases were civil cases. In the civil arena a rule is applied which permits no excuses for late-filed appeals. (See Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660 [125 Cal.Rptr. 757, 542 P.2d 1349].) The history for criminal cases differs. Under the rubric of “constructive filing,” some untimely appeals are permitted where necessary “in order to do justice.” (In re Benoit, supra, 10 Cal.3d 72, 84.) Absent resort to “transparent fictions” (Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 667 (dis. opn. of Tobriner, J.)), the rule applicable to criminal cases appears irreconcilable to that in civil cases. (Compare, e.g., People v. Martin (1963) 60 Cal.2d 615, 618-619 [35 Cal.Rptr. 769, 387 P.2d 585] [excusing late-filed appeal where defendant misled by trial court’s agreement to hear jurisdictionally invalid new trial motion] with Wenzoski v. Central Banking System, Inc., supra, 43 Cal.3d at p. 542 [disallowing excuse on parallel facts]; compare also In re Benoit, supra, [excusing late-filed appeal based on error committed by appellant’s attorney] with Ten Eyck v. Industrial Forklifts, supra, 216 Cal.App.3d at pp. 545-546 [refusing to acknowledge attorney’s error as grounds for excusing late-filed appeal].) Since we deal here with criminal proceedings, we do not feel bound by cases illustrating the civil rule, such as Wenzoski and Ten Eyck.