(Super. Ct. No. 2008015626 Ventura County). Bruce A. Clark, Judge.
The opinion of the court was delivered by: Yegan, Acting P.J.
Appendix not available electronically
CERTIFIED FOF PUBLICATION
"If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may order it to be dismissed." (Pen. Code, § 1248.) As we shall explain, this purported appeal is beyond "irregular." We have no jurisdiction to entertain it because the notice of appeal was not timely filed. (See People v. Mendez (1999) 19 Cal.4th 1084, 1094-1095.)
Bart Alan Lyons purports to appeal from the judgment entered following his negotiated guilty plea to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and displaying false evidence of vehicle registration. (Veh. Code, § 4462.5.) He admitted one prior prison term. (Pen. Code, § 667.5, subd. (b).) The trial court struck the prior prison term and sentenced him to prison for two years. It did not grant credit for time served because appellant was in custody on a parole hold. (People v. Bruner (1995) 9 Cal.4th 1178, 1182-1183.)
The issues arise from appellant's presentence request to withdraw from the negotiated disposition. At the time of his request, appellant was represented by the Public Defender. Appellant contends: (1) the trial court erroneously appointed a second attorney to represent him on the plea withdrawal request; (2) in evaluating the request, the trial court should have followed the procedure set forth in People v. Wende (1979) 25 Cal.3d 436; (3) he was denied his right to present a motion to withdraw his plea and obtain a ruling on it and his right to representation of counsel on it, and (4) he was denied his right to counsel at sentencing because he was represented by the second attorney instead of the public defender. We do not reach the merits of these contentions. We conclusionally observe, however, that crediting these contentions would call for new rules of criminal procedure.*fn1
On the date set for sentencing, a deputy public defender informed the court that appellant wanted to withdraw from the negotiated disposition which "capped" the sentence to two years. The deputy public defender did not state the grounds for the withdrawal. He requested that Conflict Defense Associates (CDA) be appointed for the limited investigation on whether [appellant] should withdraw his plea. The court appointed "CDA for that limited purpose of pursuing that motion [to withdraw appellant's plea]."
On August 13, 2008, CDA counsel appeared in court and declared: "We were actually appointed to look into the possibility of a motion to withdraw plea. After investigation and discussion with other attorneys, we don't - - there are no grounds at this time. We are prepared to go forward with the sentencing." Appellant did not object to any aspect of these procedures and the court imposed the two year prison sentence without the court awarding credit for time served. The court then stated to appellant: "Mr. Lyons, this is an appealable order. If you wish to appeal file your notice in this court within 60 days." The 60-day day time limit is imposed by California Rules of Court, rule 8.308(a).*fn2
The last day for filing the notice of appeal was October 12, 2008. The notice of appeal was executed on October 28, 2008, and was received and filed by the superior court clerk on November 3, 2008. On the reverse side of the notice of appeal, appellant requested a certificate of probable cause.
The notice of appeal was accompanied by appellant's unverified, one-page motion to allow the late filing. A copy of the motion is attached to this opinion as Appendix A. In the motion appellant alleged that he was incarcerated without counsel to assist him and that the law library did not have a notice of appeal form. In his request for a certificate of probable cause, appellant's sole complaint was that he was unlawfully denied 121 days of credit for time served.. The trial court did not rule on appellant's motion to allow the late filing, but it expressly granted his request for a certificate of probable cause.*fn3
The Appeal Must Be Dismissed Because the Notice of Appeal Was Not Timely Filed
Pursuant to our letter request of June 15, 2009, the parties submitted supplemental letter briefs on whether the appeal must be dismissed because the notice of appeal was not timely filed. It is undisputed that the notice of appeal was not actually filed within the 60-day period. Pursuant to rule 8.308(d), the superior court clerk did not have the authority to file the late notice of appeal: "The superior court clerk must mark a late notice of appeal 'Received [date] but not filed,' notify the party that the notice was not filed because it was late, and send a copy of the marked notice of appeal to the district appellate project." (Ibid., italics added.) In this situation the superior court should not entertain the granting of a certificate of probable cause appended to a late notice of appeal. Absent a showing of "constructive filing," even an appellate court cannot lengthen the 60 day rule for filing a notice of appeal. Processing this purported appeal does little to promote judicial or fiscal economy. (See People v. Panizzon (1996) 13 Cal.4th 68, 75-76.)
Appellant contends that rule 8.308(d) is inapplicable because, by expressly granting appellant's request for a certificate of probable cause, the trial court impliedly granted his motion to file the late notice of appeal. It has no power to do so. The reported cases after 1972 (when the 10 day rule for filing a notice of appeal was lengthened to 60 days) are all instances where appellate courts have granted relief. There are no reported cases, statutes or rules which allow the trial court to grant relief from an untimely notice of appeal. The rules prior to 1972 provided that the trial ...