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People v. Zarazua

November 30, 2009


APPEAL from a judgment of the Superior Court of Sacramento County, David De Alba, Judge. Motion denied. (Super.Ct.No. 01F06412).



We publish this order to put to rest a challenge to a procedure commonly used by defendants to perfect appeals from judgments in criminal cases.

After his trial attorney failed timely to file a notice of appeal, despite a request to do so, defendant Sergio Zarazua asked this court to deem his notice of appeal to be timely under the "constructive filing doctrine." (In re Benoit (1973) 10 Cal.3d 72, 85 (hereafter Benoit).) The People now move for us to vacate and reconsider our order granting defendant's motion. They contend that a request for constructive filing of an appeal may be sought only by a petition for writ of habeas corpus filed first in the superior court. Alternatively, the People claim we should not have granted defendant's motion for constructive filing of his appeal without waiting until expiration of the 15-day period for the People to oppose the motion.

As we will explain, when a notice of appeal in a criminal case is received by the trial court after the jurisdictional deadline to perfect the appeal, the appellate court may deem the notice of appeal to have been constructively filed in a timely manner if, prior to the deadline, the defendant expressly relied on his or her trial counsel to file it, but trial counsel neglected to do so. Because the appellate court has the authority to determine its jurisdiction, it is the appellate court that rules on the applicability of the constructive filing doctrine to the circumstances of a particular case. The defendant may tender the issue to the appellate court by filing either a petition for writ of habeas corpus or a motion.

For years, the common way in which the issue has been raised in the Third Appellate District has been by motion. And for years, the People have not objected to this procedure. Indeed, for years, the People have not opposed such motions of constructive filing of appeals, even when they have lacked merit. In light of the People's apparent lack of interest in weighing in on the issue in any case, this court began ruling on such motions before the 15-day period for opposition has run. For example, in this case we waited 15 days after the motion was served on the People, but not 15 days after it was filed. Only now, after years of silence, have the People objected to the process used by this court. Although we reject the People's claim that the constructive filing doctrine can be raised solely by petition for writ of habeas corpus filed first in the trial court, we agree that, while the People have heretofore shown no interest in opposing motions for constructive filing of appeal, we nonetheless must wait to decide such a motion only after at least 15 days have passed since the filing of the motion.

Having opposed the process in this case, the People mysteriously fail to make any meaningful effort to show that defendant's motion lacks merit. Since the People have demonstrated no prejudice from our premature ruling that defendant's appeal will be deemed timely under the constructive filing doctrine, we shall deny the People's "motion to vacate and reconsider" the order.


A jury convicted defendant of second degree murder, shooting at an occupied vehicle, and two counts of attempted voluntary manslaughter, and found firearm and gang enhancements to be true. Sentenced to state prison, defendant timely appealed. Reversing the convictions for second degree murder and attempted voluntary manslaughter, this court remanded the matter for "retrial and resentencing." (People v. Zarazua (2008) 162 Cal.App.4th 1348, 1351, 1362-1363.) On remand, the People declined to retry the murder and attempted voluntary manslaughter convictions.

On January 30, 2009, defendant was sentenced to an aggregate term of 40 years to life for the shooting at an occupied vehicle conviction and enhancements. The trial court informed defendant that he had the right to file a notice of appeal within 60 days.

Five months later, on June 29, 2009, defendant filed a pro se motion in this court, captioned, "Request for Permission to File a Written Notice of Appeal Under the Constructive Filing Doctrine (In re Benoit (1973) 10 Cal.3d 72)." Attached to the motion was defendant's declaration stating in pertinent part: "1. I wish to appeal the judgment and sentence imposed on 1-30-2009.... [¶] 2. I did not file a written notice of appeal on time" because on January 30, 2009, "my appointed attorney... showed me a motion and inform[ed] me it was to file for my appeal. I proceeded to willingly sign it for it to be file[d] on my behalf by [my attorney].... After I was sentence[d,] I lost all contact with my counsel but, I rested assure[d] based on his promise that he filed my notice of appeal (NOA). While in the custody of the California Department of Corrections I waited for the Central California Appellate Program (CCAP) to send me forms to fill out to apply for an attorney.... When that didn't happen, I wrote to the Sacramento County Superior Court inquiring if my (NOA) had been file[d] to their [sic] offices or not. I also asked my family to contact [my trial attorney] to ask him if he had filed my (NOA). When they were able to contact him, [he] at first assured them that he did file my (NOA) but later admitted that he didn't file it. After that he did file a motion for appeal on my behalf... but [the Superior Court] marked [it] `received but not filed' as the period for filling [sic] had lapsed. [¶] On June 3, 2009, [CCAP] informed me... that my appeal had been deemed inoperative because it was filed too late. Enclosed in [CCAP's] letter was this motion, and instructions on how to fill out a notice of appeal."

Defendant's motion for constructive filing on his appeal was served on the Sacramento office of the Attorney General on June 24, 2009.

On July 9, 2009, we granted defendant's motion for constructive filing of his appeal, and directed the superior court clerk to file the notice of appeal and to prepare the record on appeal.

On July 14, 2009, the People moved to vacate our July 9 order. We appointed counsel to represent defendant and have received an ...

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