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In re Grunau

December 30, 2008


(Santa Clara County Super. Ct. No. 1185613). Trial Judge: The Honorable James H. Chang.

The opinion of the court was delivered by: Rushing, P.J.


Defendant Mark Daniel Grunau seeks recall of the remittitur in this matter on the ground that the 1997 dismissal of his appeal resulted from neglect and misconduct by his appellate attorney, and that relief was not sought sooner because that attorney consistently and plausibly misrepresented the status of the case to defendant through defendant's father. We initially denied defendant's motion but were directed by the Supreme Court to reconsider the matter. Having done so, we are persuaded that defendant is entitled to the relief he seeks. Accordingly, we will recall the remittitur so that the appeal may be determined on the merits.


On March 21, 1996 a jury found defendant guilty of one count of sexually abusing a minor (Pen.Code § 647.6). The trial court sentenced him to 25 years to life under the "Three Strikes" law. Defendant's father, Dan Grunau (Mr. Grunau), retained Dan J. Foley to prosecute an appeal. Foley prepared and seasonably filed a notice of appeal, which was received by this court on September 6, 1996. He then failed to file an opening brief within the time allowed, and disregarded a notice from this court that failure to file a brief within 15 days would result in dismissal of the appeal. (See Cal. Rules of Court, rule 8.220(a), former rule 17(a).) When no opening brief was filed, we dismissed the appeal on January 24, 1997. On April 4, 1997, we issued a remittitur, terminating the matter.

Defendant relied on his father to communicate with Foley regarding the appeal, in part because his own attempts to contact Foley were largely unsuccessful. Everything defendant learned about his case came from his parents. Between 1996 and 2004, Mr. Grunau called Mr. Foley monthly, sometimes weekly. In September 2002, he discovered that Foley's phone had been disconnected, but tracked Foley down by using the phone book to find someone who knew Foley's mother. According to Mr. Grunau, Foley at no time disclosed that the appeal had been dismissed. On the contrary, from 1996 to 2004, in response to repeated inquiries, Foley consistently assured Mr. Grunau that the appeal was proceeding in due course.

Despite Foley's assurances, Mr. Grunau attempted to independently confirm that the appeal was pending by contacting the superior court. Those attempts were unsuccessful. Eventually-on August 24, 2004-Mr. Grunau contacted this court, and was told that the appeal had been dismissed. He went to the law library to research a possible remedy. He also continued to attempt to communicate with Foley regarding a possible solution. Finding none, he again telephoned this court in November and was directed by the clerk's office to contact the Sixth District Appellate Project. He did so that same month.

On March 3, 2005, through the appellate project, defendant filed a motion to recall the remittitur. In view of the inordinate lapse of time, we denied the motion. Defendant thereupon filed a petition for writ of habeas corpus in the California Supreme Court. He alleged that after taking money for the representation, Foley had, without authorization, abandoned the appeal. He further alleged that Foley had resigned from the State Bar in 2001, in the face of multiple pending disciplinary proceedings. Defendant alleged that Foley had intentionally misrepresented the status of the appeal from 1996 to 2004, repeatedly assuring defendant's family that the appeal was still pending when in fact it was not. He contended that his failure to discover the true status of his appeal was justified because of Foley's misrepresentations, and that as soon as his family actually discovered the status of the appeal in August of 2004, immediate steps were taken to reinstate the appeal.

The Supreme Court issued an order to show cause, returnable here, directing correctional officials to show cause before this court "why the remittitur . . . should not be recalled, why the order dismissing defendant's appeal should not be vacated, and why defendant's appeal should not be reinstated. (See In re Serrano (1995) 10 Cal.4th 447 [(Serrano)]; In re Martin (1962) 58 Cal.2d 133 [(Martin)]." (In re Grunau on Habeas Corpus (2007) S148025, order en banc.) The state filed a return denying allegations of the petition. To resolve the resulting issues, we referred the matter to a special master, Santa Clara Superior Court Judge Jamie Jacobs-May. We asked her to make findings of fact regarding efforts by defendant to protect his appellate rights, the nature and extent of defendant's prior experience with the appellate process, the nature of defendant's relationship with and reliance on his father, the history of his father's contacts with Attorney Foley, and the nature of Foley's conduct.

The parties appeared before the special master and, in lieu of an evidentiary hearing, presented a stipulated set of facts responsive to our inquiry. Defendant also submitted a new declaration on his own behalf. The special master, having no reason to doubt the veracity of the facts submitted, adopted them as her findings. The question presented is whether the facts thus established warrant the recall of the remittitur and the reinstatement of the appeal.


Showing Required for Recall of Remittitur

Remittitur is the device by which an appellate court formally communicates its judgment to the lower court, finally concluding the appeal and relinquishing jurisdiction over the matter. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 841, pp. 904- 905, 844, pp. 906-907; Code Civ. Proc., §§ 43, 912.) By recalling the remittitur, an appellate court reasserts jurisdiction on the basis that the remittitur, or more often the judgment it transmitted, was procured by some improper or defective means. Technically the court does not reclaim a jurisdiction it has lost, but disregards a relinquishment of jurisdiction that is shown to have been vitiated. (See 9 Witkin, supra, § 847, pp. 909-910.)

Traditionally a remittitur could be recalled only where the appellate judgment was the product of fraud (e.g., Ellenberger v. City of Oakland (1946) 76 Cal.App.2d 828, 830), mistake (e.g., In re Rothrock (1939) 14 Cal.2d 34, 38-39), or inadvertence (e.g., In re McGee (1951) 37 Cal.2d 6, 8-9). More recently the remedy has been applied to criminal cases where the appellate judgment is shown to result from the ineffective assistance of appellate counsel. (Serrano, supra, 10 Cal.4th at pp. 457, 458; Martin, supra, 58 Cal.2d at pp. 137, 139.) Relief is based on the principle that "if possible, appeals should be heard and decided on the merits. [Citation.]" (Serrano, supra, 10 Cal.4th at p. 458; Martin, supra, 58 Cal.2d at pp. 137, 139.) In a civil case, attorney negligence may be remediable by a malpractice action, and it may be better to relegate the aggrieved litigant to that remedy than to impair the finality of appellate judgments on the ground of counsel's deficient performance. But in a criminal case, a botched appeal may result in punishment for a crime of which the defendant was convicted in error, merely because his legal representative defaulted in the performance of his professional duties. Arguably it does not lie in the state's mouth to object to relief, since it has ...

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