People v. Morris CA1/3

Filed 3/5/14 P. v. Morris CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A140867 v. JUSTIN JOSEPH MORRIS, (Napa County Super. Ct. No. CR165433) Defendant and Appellant.

Defendant Justin Joseph Morris seeks leave to file a late notice of appeal from the judgment, entered following his no contest plea, convicting him of second degree burglary, receiving stolen property, unlawfully taking a vehicle, and being a felon in possession of ammunition and sentencing him to six years four months in prison. He contends his failure to file a timely notice of appeal was the product of his trial attorney’s inadvertent failure to advise him of his appellate rights so that this court should deem his notice constructively filed within the statutory time limits. We conclude that the doctrine of constructive filing of an appeal is inapplicable in the circumstances of the present case. Accordingly, we shall deny defendant’s motion and, on our own motion, dismiss the appeal. Background The exhibits attached to defendant’s motion establish the following facts: At the sentencing hearing on August 8, 2013, the court advised defendant of his appellate rights. On August 14, defendant’s trial counsel wrote a letter to defendant “explaining among other things, the 60-day time limit for a filing of a Notice of Appeal.” On August

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26, however, the county jail returned the letter to counsel with a note indicating that defendant was no longer housed at the jail. On September 5, counsel sent the same letter to defendant at North Kern State Prison, but he mistakenly used an incorrect inmate number and the letter was returned with a note indicating that the inmate had rejected it. On October 1, 2013, counsel emailed the letter to a third party who was handling defendant’s affairs, who apparently forwarded the letter to defendant in prison. Defendant claims to have received the letter on October 11, four days after the October 7 deadline for filing a notice of appeal. On October 17, defendant’s trial counsel received a letter from defendant asking where he should send his notice of appeal. Counsel responded by letter with the address for the Napa County Superior Court. On November 12, defendant mailed his late notice of appeal to the superior court. Discussion It is a well-established principal that the time limits for filing a notice of appeal are jurisdictional and cannot be extended. (See, e.g., In re Chavez (2003) 30 Cal.4th 643, 650 [a timely notice of appeal is “essential to appellate jurisdiction” and an untimely notice is “ ‘ “wholly ineffectual: [t]he 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.” ’ ”].) However, the doctrine of constructive filing may provide relief from the failure to file a timely notice of appeal where an incarcerated appellant has reasonably relied upon an agreement with his attorney to timely file a notice of appeal and the appellant has displayed diligent but futile efforts to ensure that the attorney has carried out his responsibility. (In re Benoit (1973) 10 Cal.3d 72, 84-86.) In Chavez, the court emphasized: “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. [Citation.] 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