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People v. Rivera

California Court of Appeals, First District, Second Division

June 5, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
MARLON RIVERA, Defendant and Appellant.

[DEPUBLISHED BY ORDER]

[As Modified on July 2, 2014]

Superior Court of the City and County, No. 218652 of San Francisco Honorable Harold E. Kahn

COUNSEL

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Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, and Hanna Chung, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Kline, P.J.

Defendant Marlon Rivera has moved for leave to file a late notice of appeal from a postjudgment restitution order. Although defendant’s situation cannot be fitted into the limited circumstances where state law authorizes late filing, federal constitutional law holds that the failure of defendant’s trial counsel to file a timely notice of appeal amounts to the ineffective assistance of counsel prohibited by the Sixth Amendment. Because defendant has established a clear lapse of counsel’s professional duty, we shall grant the motion and direct that the late notice of appeal be accepted for filing.

Defendant was convicted in the Superior Court of the City and County of San Francisco of one count of first degree murder (Pen. Code, §§ 187); two counts of robbery (Pen. Code, § 211); one count of attempted robbery (Pen. Code, §§ 211, 664); one count of conspiracy (Pen. Code, § 182); and one count of active participation in a criminal street gang (Pen. Code, § 186.22), together with various enhancements. On September 24, 2013, defendant was sentenced to state prison for an aggregate term of 35 years to life. On October 2, 2013,

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defendant’s counsel, Wm. Michael Whelan, Jr., filed a timely notice of appeal on his behalf from ...


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