In re Calderon CA5

Filed 6/6/14 In re Calderon CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re F069096

MIGUEL CALDERON, (Tulare County Sup. No. VCF239260A)

On Habeas Corpus. OPINION

THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Miguel Calderon, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, and Jamie A. Scheidegger, Deputy Attorney General, for Respondent. -ooOoo-

STATEMENT OF FACTS A Tulare County jury convicted petitioner jury of six counts of attempted murder (Pen. Code, §§ 664, 187) and one count of shooting at an inhabited dwelling (Pen. Code, § 246). The jury also found true numerous sentencing enhancements. Petitioner was originally sentenced in October of 2011 to 120 years to life.

 Before Poochigian, Acting P.J., Detjen, J., and Sarkisian, J.† † Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

On appeal, this court concluded the sentence constituted cruel and unusual punishment under Graham v. Florida (2010) 560 U.S. 48 and People v. Caballero (2012) 55 Cal.4th 262 because petitioner was only 17 years of age at the time he committed the offenses. (People v. Calderon (May 23, 2013 , F063435) [nonpub. opn.] at pp. 15-17.) This court reversed and remanded the case for resentencing. (Id. at p. 17.) In the verified habeas petitions he filed in this case and the related action, No. F068837, petitioner states he was resentenced on October 28, 2013, to 55 years to life.1 He also claims to have asked his attorney at the sentencing hearing to file a notice of appeal on his behalf and that she agreed to do so. He first learned on January 27, 2014, that she had not timely filed the notice of appeal as promised. The record in this case includes two letters from the Superior Court of Tulare County that support petitioner’s allegations. The first, dated January 17, 2014, advised petitioner’s trial attorney, Melina Benninghoff, that the court did not receive the notice of appeal she presented in petitioner’s case until January 13, 2014, and that the last day to file the notice was December 27, 2013. The second letter, dated March 7, 2014, advised petitioner the court received his notice of appeal on February 13, 2014, but would not act on it because it was untimely. The letter also told petitioner if he wished to pursue an appeal, he would have to file a writ with the Fifth District Court of Appeal. This petition was filed on March 25, 2014. This court twice invited petitioner’s trial attorney to respond to petitioner’s allegations. She did not reply. The Attorney General was given an opportunity to respond and advised this court in writing on May 27, 2014, that they do not oppose this court granting petitioner relief.