People v. Grimes

Opinion

MORRISON, J.

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Defendant John Robert Grimes entered unconditional pleas of guilty to battery with serious bodily injury (Pen. Code, § 243, subd. (d); further section references are to this code; count I) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count II). He was sentenced on count I to state prison for the low term of two years with 141 days of presentence credit. Sentence on count II was stayed pursuant to section 654.

[123]

On appeal, defendant contends the trial court abused its discretion by imposing a prison sentence rather than granting him probation. We shall affirm the judgment.

In the published portion of this opinion we discuss the importance of careful handling of notices of appeal.

FACTS

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DISCUSSION

I.

The offense occurred on the night or early morning of August 20, or 21, 2005. Defendant entered his plea on October 14, 2005. He was sentenced on November 23, 2005, and he filed his notice of appeal that same day.

The superior court clerk must “promptly mail” to the Court of Appeal notification of the filing of a notice of appeal. (Cal. Rules of Court, rule 8.304(c)(1).) “The failure of a court reporter or clerk to perform any duty imposed by statute or these rules that delays the filing of the appellate record is an unlawful interference with the reviewing court’s proceedings. . . .”

(Id.,

rule 8.23.)

However, it was not until March 11, 2008, that notice of filing the notice of appeal was mailed. In a declaration, the appeals clerk for the Amador County Superior Court stated that she had just discovered that this appeal, and two others, had been “filed and forgotten,” and that defendant, who had received a two-year sentence, “is more than likely out of prison by now.”