Filed 6/8/16 In re Gaines CA5

Received for posting 6/9/16

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re

LESLIE JAMES GAINES

,

On Habeas Corpus. F0 72604

( Kings Sup er Ct. No. 15CM7047 )



### OPINION

THE COURT *
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Leslie James Gaines, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlo s A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for
Respondent.

- ooOoo

Petitioner seeks a belated appeal.
On February 24, 2015, petitioner was charged with one count of possession of a
dangerous weapon by an inmate. The complaint also alleged that petitioner suffered a
prior strike conviction.

* Before Gomes, A.P.J., Kane, J., and Peña, J.2

On June 4, 2015, pursuant to a plea agreement, petitioner pled no contest and
admitted the prior strike conviction. He was sentenced to a term of eight years.
On July 24, 2015, the Clerk of the Kings County Superior Court received a letter
from petitioner. The letter stated in pertinent part as follows:

“I was recently in one of the court rooms in the Hanford Superior Court. I was a defendant, in a possession of an inmate manufactured weap on. I would like to file an appeal in your court for a violation of my rights, during the filing of the information.

“I have the :[sic] Notice of Appeal” formating, and the letter to your court already prepared. I, However, do not have the form, or the format, for the required ‘probable cause’ certification, that is to accompany that notice of appeal, pursuant to California’s Rules of Court.

“... I need that case number from your office, as well as the form/formating information for the notice of appe al....

“This appeal is taken after plea of nolo contendere. Pursuant to penal code §1237.5, defendant that files the appeal must attach a certificate of probable cause, or declaration in support of certificate of probable cause. This appeal is based sol ely on grounds involving The M a randa [ sic ] rights of the defendant, discovered upon the application of due diligence, after the entry of such plea that do not challenge the validity of the plea.

“For the above reason I need the clerk’s assistance with the filing’s requirements.”

DISCUSSION “[T]he construction of notices, particularly by incarcerated prisoners acting in pro.
per., has been extraordinarily liberal.” (6 Witkin, Cal. Criminal Law (4th ed. 2012)
Criminal Appeal, § 92.)

The letter from the A ttorney General dated April 29, 2016, does not dispute that
the above quoted letter constitutes a constructive filing citing People v. Griggs (1967) 67

Cal.2d 314 and In re Gons alves (1957) 48 Cal.2d 638.
The fact that the superior court clerk marked the letter “received” and returned it
to petitioner does not negate the application of the doctrine of constructive filing.3

( People v. Griggs

, supra , 67 Cal.2d 314; United Farm W orkers of America v.

A gricultural Labor Relations Bd

. (1985) 37 Cal.3d 912.)

Pu rsuant to the Attorney General’s letter and the above analysis, this court
concludes that petitioner’s letter to the Clerk of the Kings County Superior Court,
received on July 24, 2015, constitutes a constructive filing entitling him to a belated
appeal.

DISPOSITION
The Clerk/Administrator of this court is directed to send copies of petitioner’s
letter, the notice of appeal dated October 21, 2015, and the attached request for certificate
of probable cause to the Clerk of the Kings County Superior Court.

L et a writ of habeas corpus issue directing the Clerk of the Kings County Superior
Court to file said copies in case No. 15CM7047, to deem said copies timely filed, and to
proceed with the preparation of the appropriate record on appeal in accordance with t he
applicable rules of the California Rules of Court.