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In re Gray

December 2, 2009


(Super.Ct.No. 05F09779).

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



This matter has taken a circuitous route back to this court because of defendant David Gray's failure to follow the Sacramento County Superior Court's directions regarding the filing of a notice of appeal from a judgment against him in a criminal case, and the trial judge's insistence that defendant could not file his notice of appeal with the trial judge's courtroom clerk instead of with the "Appeals Unit" of the court clerk's office as directed by the court's website.

The matter was previously before us when, after the jury had returned a verdict finding him guilty, but before the trial court imposed judgment, defendant filed two separate notices of appeal. We dismissed them as purported appeals from a non-appealable order. When we did so, a judgment against defendant had still not been imposed. Our remittitur issued in September 2007.

The matter is now before us again because the California Supreme Court, via defendant's petition for writ of habeas corpus, ordered the Director of the Department of Corrections and Rehabilitation to show cause before us why (1) our remittitur should not be recalled, (2) why the trial court did not err by refusing to accept the notice of appeal defendant sought to file with the trial judge's courtroom clerk immediately after judgment was imposed, and (3) why defendant should not be allowed to file a belated notice of appeal.

We decline to recall the remittitur issued by this court in September 2007, but we conclude Gray must be given an opportunity to file, within 30 days after the finality of this opinion, a notice of appeal from the judgment entered on July 16, 2007, and, if he does, the superior court must treat the notice of appeal as a timely appeal from that judgment. As we will explain, (1) although the California Supreme Court's order suggests that it would be appropriate to recall the September 2007 remittitur, there not only is no legal basis upon which to do so, it would create the peculiar result of having three appeals from the same judgment, and (2) a deputy clerk assigned to a courtroom is part of the clerk's office; thus, absent a valid local rule of court to the contrary, a notice of appeal can be filed with a courtroom clerk, not just with the appeals unit of the clerk's office.

We caution, however, that our second conclusion is not meant to be an invitation for convicted defendants to routinely file notices of appeal with courtroom clerks. Indeed, doing so may harm, not help, defendants who want to appeal. This is so because experience has shown that the filing of notices of appeal with courtroom clerks, rather than with the appeals unit of the court clerk's office, has led to significant delays in the processing, and ultimate resolution, of appeals.

We also emphasize that we limit our conclusion to a notice of appeal in a criminal case (for which there is no filing fee to be processed) that a defendant seeks to file with the courtroom clerk of the judge who imposes sentence. We do not consider whether an attorney or litigant can walk into any courtroom and file any motion or other matter with the courtroom clerk.


On June 19, 2007, a jury found defendant David Gray guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189) with use of a firearm (Pen. Code, § 12022, subd. (b)(1)) and found that he had two prior serious felony convictions (Pen. Code, § 667, subd. (a)) for robbery (Pen. Code, § 211). The trial court referred the matter to the probation department for a report and recommendation on sentencing, and the court selected July 16, 2007, as the date upon which judgment would be imposed.

Prior to the imposition of judgment, Gray filed two pro se notices of appeal from the purported "judgment of the [Sacramento County Superior Court] rendered against defendant on 6-19-07." One of the notices of appeal was filed on June 22, 2007; the other was filed on June 26, 2007.

On July 5, 2007, prior to the trial court's imposition of judgment, this court dismissed the two notices of appeal as being taken from a non-appealable order. (Pen. Code, § 1237; People v. Valladoli (1996) 13 Cal.4th 590, 597 ["a verdict is not a final judgment" from which an appeal may be filed]; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 46, p. 290 ["[n]o appeal lies from the verdict"].) The orders of dismissal were filed and mailed on July 5, 2007, and the remittitur issued on September 5, 2007.

On July 16, 2007, Gray was sentenced to a term of 15 years to life for the second degree murder conviction, tripled to 45 years to life (Pen. Code, § 667, subd. (e)(2)(i)), plus consecutive terms of five years (Pen. Code, § 667, subd. (a)) and one year (Pen. Code, § 12022, subd. (b)(1)).

Gray was representing himself at sentencing. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].) When advised of his right to timely file a written notice of appeal from the judgment imposed that day, he asked the court, "Can I file my notice of appeal right now?" The judge responded that Gray could not file the notice of appeal "in this courtroom." (The website of the Sacramento County Superior Court specified that a notice of appeal from the judgment in a felony case "must be filed with the ...

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