Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. NCR69345, NCR69632
ROBIE, J.
In November 2006, defendant Gregory Brian Detoskey pled guilty to several criminal charges in two cases in exchange for the dismissal of other charges. Sentencing was set for December 19, 2006. On that date, the court sentenced defendant to an aggregate term of seven years in prison.
On January 5, 2007, the court issued a minute order placing the matter on calendar “for further proceedings regarding custody credits and restitution.” That further hearing was held on January 18, 2007, at which time the court ordered defendant’s custody credits corrected, then clarified that the restitution fine previously ordered was to be split equally between the two cases.
Defendant was represented throughout the trial court proceedings by retained counsel. On March 7, 2007, acting through his retained attorney, defendant filed a notice of appeal “from the sentencing of the above-entitled court rendered on January 18, 2007.” In that same document, defendant requested appointed counsel to represent him on appeal.
Although he purported to appeal from the “sentencing . . . on January 18,” on appeal defendant does not raise any issue regarding custody credits or restitution, which were the only issues addressed at the January 18 hearing. Instead, defendant challenges the prison term imposed at his sentencing on December 19. The People contend defendant’s appeal should be dismissed because the notice of appeal filed on March 7 was not a timely appeal of the judgment rendered on December 19. (See Cal. Rules of Court, rule 8.308(a) [“Unless otherwise provided by law, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed”].)
In his reply brief, defendant acknowledges the belated filing of his notice of appeal but contends the notice should be deemed timely under the constructive filing doctrine. We disagree.
The Supreme Court “enunciated that doctrine in People v. Slobodion (1947) 30 Cal.2d 362, 366-367 [181 P.2d 868], where [the court] held that because the defendant delivered a notice of appeal to state prison employees for mailing six days prior to expiration of the period prescribed for filing an appeal, he had constructively filed the notice within the applicable period, notwithstanding the negligent delay of the prison employees in mailing the notice only after the specified time had expired.” (In re Chavez (2003) 30 Cal.4th 643, 657.) In In re Benoit (1973) 10 Cal.3d 72, the court “extended the principle of constructive filing announced in People v. Slobodion, supra, 30 Cal.2d at page 367, ‘to situations wherein an incarcerated criminal appellant has made arrangements with his attorney for the filing of a timely appeal and has displayed diligent but futile efforts in seeking to insure that the attorney has carried out his responsibility.’” (Chavez, at p. 657, quoting Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 669.) In Chavez, the court expressly declined to extend the constructive filing doctrine further than it had been applied in Benoit. (Chavez, at p. 658.)
We see no basis to apply the constructive filing doctrine of Slobodion and Benoit here. Certainly this is not a case like Slobodion, where defendant delivered a timely notice of appeal to prison officials. As for Benoit, even if we assume (as defendant’s appointed appellate counsel apparently has) that the notice of appeal “from the sentencing . . . rendered on January 18” was intended to refer to the judgment imposed on December 19 (rather than to the post judgment order on custody credits and restitution from January 18), there is nothing in the record to show defendant made arrangements with his attorney for the filing of a timely appeal from the December 19 judgment and displayed diligent but futile efforts in seeking to ensure that the attorney carried out his responsibility. Absent such a showing, we cannot treat the notice of appeal as constructively filed within the 60-day period from the imposition of judgment on December 19 and must instead dismiss the appeal as untimely. This dismissal is without prejudice to any relief to which defendant may be entitled on a petition for writ of habeas corpus.
DISPOSITION
The appeal is dismissed.
We concur: BLEASE, Acting P.J., SIMS, J.