Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE220771
ELIA, J.Appellant Hari Cheruku (Cheruku) purports to appeal from an order "denying [his] motion to reconsider his motion to vacate the conviction in this case pursuant to Penal Code section 1016.5." We conclude that no appeal lies. Accordingly, we dismiss this appeal.
As pertinent here, Penal Code section 1016.5 states "(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law... the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
Background
On April 18, 2002, the Santa Clara County District Attorney filed an information in which appellant was charged with one felony count of false imprisonment (Pen. Code, §§ 236-237, count one) and one count of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (d)).
On April 29, 2002, Cheruku entered a plea of no contest to both counts. On May 30, 2002, the court suspended imposition of sentence and placed Cheruku on three years probation on condition that he serve 12 months in county jail on the felony count. On April 17, 2008, Cheruku filed a motion to vacate the judgment for violation of Penal Code section 1016.5. By lengthy written order filed July 10, 2008, Judge Garibaldi denied the motion. Thereafter, on September 25, 2008, Cheruku filed a motion to reconsider his motion to vacate his conviction. On the same date, after hearing argument from the parties, Judge Garibaldi again denied Cheruku's motion to vacate.
Cheruku asserted that he was not given the mandatory warning concerning potential immigration consequences required by Penal Code section 1016.5 in a language that he could understand even though he was provided an interpreter.
Subsequently, on October 15, 2008, Cheruku filed a notice of appeal from "the order of the Superior Court dated September 25, 2008."
Discussion
In their respective briefs, the parties argued whether the motion to vacate was properly denied. We requested supplemental briefing on two issues; specifically, under what authority the superior court could reconsider Cheruku's motion to vacate; and if the superior court lacked that authority, was the notice of appeal timely as to the July 2008 order denying his motion to vacate.
We framed the issues as follows: "In light of the fact that '[o]rders and judgments are deemed final in the superior court, and not subject to reconsideration by that court' [citation], under what authority could the superior court reconsider its July 10, 2008 order denying appellant's motion to vacate his conviction?"; and "If the Santa Clara County Superior Court lacked authority to reconsider its July 10, 2008 order, is appellant's appeal timely."
Cheruku asserts that no court has ever prohibited a court from reconsidering a denial of a motion to vacate and many courts have recognized that a court has broad inherent powers to reconsider its rulings. In support of this proposition Cheruku cites to cases such as Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d9, 19-24 (Asbestos Claims) and Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377-1378.
We note that Asbestos Claims, supra, 219 Cal.App.3d 9, was overruled on another ground in Kowis v. Howard (1992) 3 Cal.4th 888, 896.
Asbestos Claims, supra, 219 Cal.App.3d 9 was a complex asbestos litigation case. (Id. at p. 13.) A law firm had been appointed by two trial courts to schedule discovery matters for all defendants in both courts. After a fee dispute arose between the law firm and the defendants, the law firm brought motions in both courts to compel payment of its fees. The trial courts granted the motions and ordered defendants to pay immediately certain past due bills, and all future bills within 30 days. (Id. at pp. 13-14.) The defendants appealed. (Id. at p. 13.)
On appeal, the defendants contended that the fee orders had to be reversed because the underlying orders establishing the designated defense counsel system were unlawful. The defendants argued that the system was unauthorized by case law, statute, or court rule. (Asbestos Claims, supra, 219 Cal.App.3dat p. 18.) The appellate court held that the orders appointing the firm to handle discovery matters for all defendants and requiring defendants to pay the firm's fees were within the inherent administrative powers of the trial courts. (Id. at p. 23.)
In reaching this holding, the First District Court of Appeal noted "all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. [Citations.]" (Asbestos Claims, supra, 219 Cal.App.3dat p. 19.) The court went on, "That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation, including discovery matters, in order to insure the orderly administration of justice." (Ibid., italics added.)
Similarly, in Cottle v. Superior Court, supra, 3 Cal.App.4th 1367 (Cottle), numerous property owners and renters in a residential subdivision brought an action against developers for personal injuries, emotional distress, and property damage arising from the defendants' construction and development of the subdivision on a site that had been a depository of hazardous wastes and byproducts. The trial court determined that the case was a complex litigation case and required each plaintiff to file a detailed statement establishing a prima facie claim for personal injury. Plaintiffs' statements indicated that it was virtually impossible to link, with reasonable medical probability, any specific plaintiff's injury or symptom to exposure to specific toxic substances. Thereafter, the court issued an order precluding plaintiffs from submitting evidence at trial that their personal physical injuries were caused by exposure to chemicals at the subdivision. (Id. at pp. 1371-1372.)
On appeal, the plaintiffs contended that the trial court had no authority for the procedure employed by the court. (Cottle, supra, 3 Cal.App.4th at p. 1376.) The Second District Court of Appeal held that in a complex litigation case that has been assigned to a judge for all purposes, case law and various statutory provisions give courts broad and inherent powers and serve as the sources for the authority to issue an evidence exclusion order. (Ibid.) The court noted, "courts have inherent equity, supervisory and administrative powers [citation] as well as inherent power to control litigation before them. [Citation.]" (Id. at p. 1377, italics added.)
Citing People v. Castello (1998) 65 Cal.App.4th 1242, 1248 (Castello), Cheruku argues that the court's inherent " 'powers include authority to rehear and reconsider rulings.' "
In Castello, supra, 65 Cal.App.4th 1242, the defendant pleaded guilty to nine counts of grand theft of personal property. Initially, the trial court found true an allegation that Castello suffered a prior conviction in Florida under the three strikes law. However, on subsequent motion by Castello, the court reversed this finding and held the prior did not constitute a valid "conviction." (Id. at p. 1245.) Thereafter, the court sentenced Castello to eight years, four months in state prison, with 410 days' credit for time spent in custody. The People appealed the sentence based on the court's invalidation of the prior conviction allegation, contending that the trial court lacked power to reconsider its finding under Code of Civil Procedure section 1008. (Id. at pp. 1245-1246.)
In Castello, Justice Huffman for the unanimous Fourth District Court of Appeal found that Code of Civil Procedure section 1008 does not apply in criminal matters, but instead, that "[i]n criminal cases there are few limits on a court's power to reconsider interim rulings." (Castello, supra, 65 Cal.App.4th at p. 1246, italics added.) Similar to the preceding two cases, in Castello, there was no final judgment, but only interim orders.
Castello' s declining to apply Code of Civil Procedure section 1008 to bar reconsideration in criminal actions was explained and approved by the Supreme Court's unanimous opinion in People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 728-729.
Nevertheless, our Supreme Court has instructed that "[o]rders and judgments are deemed final in the superior court, and not subject to reconsideration by that court, to preserve confidence in the integrity of judicial procedures and to avoid the delays and inefficiencies associated with repeated examination and re litigation of the same facts and issues. [Citation.] The concept of finality 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.' [Citations.] This court has recognized that '[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice....' [Citations.]" (People v. DeLouize (2004) 32 Cal.4th 1223, 1232, (DeLouize).)
In DeLouize, the defendant was charged with three counts of lewd acts with a minor and one count of continuing sexual abuse of a minor. For sentencing purposes, the information alleged, that the defendant had previously been convicted of the felony of robbery. After a trial, the jury returned verdicts finding defendant guilty of three counts of lewd acts with a minor. The defendant waived a jury trial on the prior conviction allegation, and, after presentation of evidence, the trial court found the allegation true. (DeLouize, supra, 32 Cal.4th at p. 1227.)
Thereafter, the defense filed a motion for a new trial on the ground that the trial court had committed reversible instructional error. On the day set for pronouncement of judgment, the trial court granted the defense motion for a new trial. Although the prosecution could have appealed the order granting a new trial, it did not so do. (DeLouize, supra, 32 Cal.4th at p. 1227.)
After the expiration of the 60 days within which the prosecution could have filed a timely notice of appeal, the prosecution brought a motion requesting reconsideration of the order granting a new trial, citing intervening judicial decisions. The court granted the motion to reconsider and reinstated the jury verdicts. (DeLouize, supra, 32 Cal.4th at p. 1227.) Thereafter, the trial court sentenced defendant to a term of 17 years in state prison and the defendant filed a timely notice of appeal from the judgment. (Id. at p. 1228.)
The Court of Appeal affirmed in a partially published opinion concluding that the trial court had authority to reconsider its ruling granting a motion for a new trial; and that it properly exercised its discretion so to do. (DeLouize, supra, 32 Cal.4th at p. 1228.) The Supreme Court granted defendant's petition for review, limiting the issue to be briefed and argued to whether the superior court retained jurisdiction to vacate its order granting defendant's motion for a new trial and to enter an order denying the motion. (Ibid.)
The DeLouize court observed that it had not previously decided whether, in a criminal case, a trial court was prohibited from reconsidering an order granting a new trial, but because "courts may correct judicial error in the making of interim orders or in limine rulings until pronouncement or entry of a judgment" (DeLouize, supra, at pp. 1228, 1231), the issue depended on whether the challenged order was "an interim order or a final order...." (Id. at p. 1231.)
The DeLouize court observed, "judicial error in the making of a final order or judgment 'may not be corrected except pursuant to statutory procedures' or on the limited grounds available for a collateral attack. [Citations.]" (DeLouize, supra, 32 Cal.4th at p. 1231.)
The DeLouize court held, "An order granting a new trial is not final in the sense of being a final resolution of the case or a final determination of the defendant's guilt or innocence. On the contrary, an order granting a new trial 'does not finally dispose of the matter.' [Citation.] In a criminal case, '[t]he granting of a new trial places the parties in the same position as if no trial had been had.' [Citation.] Thus, an order granting a new trial is an interim order in the sense that it requires further proceedings before the case may be resolved and judgment may be pronounced." (DeLouize, supra, 32 Cal.4th at p. 1231.)
The Attorney General points out that the trial court's order denying Cheruku's motion to vacate the judgment was not an interim ruling issued in a case subject to further pending proceedings. Rather, the order disposed of Cheruku's claim challenging the validity of the criminal judgment and was immediately appeal able under Penal Code section 1237, subdivision (b), as an "order made after judgment, affecting the substantial rights of a party." For reasons that follow, we agree with the Attorney General.
People v. Totari (2002) 28 Cal.4th 876, held that the denial of a defendant's Penal Code section 1016.5 motion to vacate was an appealable order. (Id. at p. 887.)
First, normally, the rule for distinguishing between an interim and a final order is whether such order is appeal able. (Dick v. Superior Court (1986) 185 Cal.App.3d1159, 1163, fn. 5.) Here, as noted, the denial of the motion to vacate the judgment was immediately appeal able.
Second, "To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the non advisement. [Citations.] On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised." (People v. Totari, supra, 28 Cal.4th at p. 884.) If the defendant succeeds in his or her motion and the motion is granted, the defendant is returned to the position he or she was in before the entry of a plea. Thus, in effect, a motion to vacate the judgment is similar to a motion for a new trial.
As the DeLouize court noted, with certain exceptions, not applicable here, in a criminal case, "a trial court that has denied a motion for a new trial lacks authority to consider and grant a second or renewed motion for a new trial. [Citations.]" (DeLouize, supra, 32 Cal.4th at p. 1228.)
For example, an order on a motion for new trial may be reconsidered (1) where the ruling is immediately reconsidered before it has been fixed by entry in the minutes and before any further proceedings have transpired (People v. Hensel (1965) 233 Cal.App.2d 834, 837-838; (2) in a furcated trial, where certain policy considerations render the general rule inapplicable (People v. Risenhoover (1966) 240 Cal.App.2d 233, 235); or (3) where the order is entered inadvertently or prematurely. (People v. Martin (1926) 199 Cal. 240, 242; People v. Paysen (1932) 123 Cal.App. 396, 399-400; Robson v. Superior Court (1915) 171 Cal. 588, 590-592, [ruling on motion made in absence of moving party's counsel].) Another recognized exception exists "where defendant's first motion was brought by his trial counsel on the sole ground of insufficiency of the evidence, and his second motion alleged ineffective representation by that very same counsel." (People v. Stewart (1988) 202 Cal.App.3d 759, 763.)
Finally, applying the DeLouize court's test for final orders, and analyzing the issue in terms of the policies underlying the general concept of finality, to allow a defendant to bring motion after motion to reconsider the denial of a motion to vacate allows a party who has had one fair adversary hearing on an issue to again draw it into controversy and subject the other party to further expense in its reexamination resulting in " 'endless litigation, in which nothing [is] ever finally determined....' [Citations.]" (DeLouize, supra 32 Cal.4th at p. 1232.)
Cheruku argues that allowing a motion to reconsider the denial of a motion to vacate a guilty or nolo contendere plea does not pose a threat of endless litigation and carries none of the costs that are generally associated with a new trial. As we have observed, if a motion to vacate is granted the defendant is returned to the position that he or she was in before the entry of a plea. Thus, the defendant is still facing charges and the probability of taking the case to trial. Nevertheless, Cheruku argues that unlike a motion for a new trial, the grant of a motion to vacate wastes very little prior judicial effort, since there has been no trial in the first place and very likely the same pressures resulting in the initial plea will result in a second non-trial disposition. Thus, the additional expense of ruling on a motion to reconsider a motion to vacate is negligible. We disagree. Cheruku's position assumes that the District Attorney and the court would agree to a negotiated disposition more favorable to Cheruku in terms of immigration and naturalization consequences. To assume that this is "very likely" to happen is pure speculation: if not attainable Cheruku would be faced with going to trial with all the attendant costs of trial and appeal.
Since the trial court's July 8, 2008 order was a final order, the superior court was without authority to grant reconsideration of Cheruku's motion to vacate. As such, the superior court's September 25, 2008 order is not appeal able. It is not an order made after judgment affecting the substantial rights of the defendant because it is equivalent to a second denial of his original application. Furthermore, absent exceptional circumstances not present here, a party who has the right to appeal from an order and fails to exercise that right in a timely fashion is not permitted to move to set the order aside and then appeal from the order denying his motion a second time. (See People v. Erickson (1946) 74 Cal.App.2d 339, 340.)
The Attorney General assumes that the court denied the motion for reconsideration and the way Cheruku frames the issue it appears that he is appealing from the denial of his "motion to reconsider his motion to vacate the conviction." However, the reporter's transcript of the September 25, 2008 hearing belies these assumptions. It is quite apparent that Judge Garibaldi did reconsider the motion to vacate and thereafter denied the motion again.
Alternatively, Cheruku argues that if the superior court lacked the authority to reconsider its order, his appeal is still timely filed pursuant to the doctrine of constructive filing. Respectfully, we disagree.
"In general, a timely notice of appeal is ' "essential to appellate jurisdiction." [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion." [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.' [Citation.]" (In re Chavez (2003) 30 Cal.4th 643, 650 (Chavez); People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
In a criminal case, "a notice of appeal... must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court shall extend the time to file a notice of appeal. (Cal. Rules of Court, rule 8.308.) Furthermore, California Rules of Court, rule 8.60(d) provides, "For good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal...." (Italics added.)
It is important to note that Cheruku does not contend that the 60-day deadline to file a notice of appeal in a criminal case does not apply under the circumstances of this case.
There are two narrowly defined and well-established exceptions to this rule pursuant to the constructive filing doctrine. Originally, the California Supreme Court enunciated that doctrine in People v. Slobodion (1947) 30 Cal.2d 362, 366-367, 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.
The two limited circumstances are recognized in the Advisory Committee Comment to California Rules of Court, rule 8.308(d), which cites In re Jordan (1992) 4 Cal.4th 116 and In re Benoit (1973) 10 Cal.3d 72.
In Chavez, supra, 30 Cal.4th 643, the California Supreme Court revisited the doctrine of constructive filing in the context of a defendant's request for leave to file a late statement of reasonable grounds for appeal. (Id. at pp. 657-658.)
In Chavez, the defendant pleaded guilty to charges while represented by one trial attorney. Then, unsuccessfully moved to withdraw his guilty plea while represented by another attorney. The defendant did not ask either attorney to file a notice of appeal on his behalf. At the request of defendant's family, a third attorney consulted with the defendant shortly after sentencing to determine whether to represent him on appeal; but that attorney did not agree to file any documents on Chavez's behalf and declined to represent him. (Chavez, supra, at pp. 647-648.) Later, the defendant filed a petition for writ of habeas corpus in the Court of Appeal, seeking relief from his failure to file a timely statement of reasonable grounds for appeal under the In re Benoit, supra, 10 Cal.3d 72 (Benoit) constructive filing doctrine. Instead, the Court of Appeal granted relief pursuant to California Rules of Court, former rule 45(e), now rule 8.60(d), but the Supreme Court reversed. (Id. at p. 648.)
In Benoit, the California Supreme Court held that where an incarcerated defendant's attorney agrees to file a notice of appeal on the defendant's behalf, but then neglects to do so in a timely fashion, the appellate court may construe a late notice of appeal as having been timely filed if the defendant displayed diligence in attempting to have the attorney discharge the responsibility. (Benoit, supra, 10 Cal.3d at pp. 86-87, 89.) The Supreme Court explained, "the principle of constructive filing... in our view embodies nothing more than a basis for judicial acceptance of an excuse for the appellant's delay in order to do justice." (Id. at p. 84.)
The Supreme Court held that an appellate court lacked authority under former rule 45(e) to excuse a defendant's failure to obtain a certificate of probable cause (Chavez, supra, 30 Cal.4th at pp. 652-657), a holding that was then incorporated into former rule 45(e), as amended effective January 1, 2005. (Advisory Com. com., 23 Pt. 2 West's Ann.Codes, Rules (2005 ed.) foll. rule 45, pp. 59-60.)
Turning to the defendant's contention that his failure to file a timely statement of reasonable grounds for appeal could be saved under the doctrine of constructive filing, the Supreme Court observed, "In Benoit, we applied the doctrine of constructive filing based upon a promise or representation made by each defendant's attorney that he would timely file a notice of appeal on his client's behalf. [Citation.] We relied in part upon the circumstance that the assurances had been made by the defendants' trial counsel, noting that 'the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him....' [Citation.]" (Chavez, supra, 30 Cal.4th at p. 658.)
The Chavez court noted that, in contrast to the situation in Benoit, "in the present case defendant did not seek and did not receive any assurances from his original or substituted trial counsel that counsel would prepare or file a written statement of reasonable grounds for appeal." (Chavez, supra, at p. 658.) Rather, the defendant terminated representation by appointed counsel, after which a third attorney, contacted by the defendant's family, declined to represent the defendant. Accordingly, the court concluded: "It is evident that none of the criteria for application of the principle of constructive filing are present in defendant's case, and accordingly his statement of reasonable grounds for appeal may not be deemed constructively filed pursuant to Benoit. We expressly decline to extend the holding of that case to situations in which an attorney not only does not agree to prepare or file a statement of reasonable grounds for appeal, but also does not agree to represent the defendant." (Ibid.) In other words, the constructive filing doctrine does not apply to a late filed notice of appeal unless the attorney representing a defendant agrees to file a notice of appeal and fails so to do.
Apart from the circumstances found in Benoit, there is one other circumstance where the Supreme Court has applied the doctrine of constructive filing to a late notice of appeal—where an incarcerated defendant delivers a notice of appeal for mailing to a prison employee within the filing period, but the notice is not actually filed until after the deadline. (Chavez, supra, 30 Cal.4th at p. 657; In re Jordan, supra, 4 Cal.4th 116, 130, [the prison delivery rule].)
Cheruku argues if the superior court lacked jurisdiction to reconsider the denial of his motion to vacate, this fact escaped the notice of all parties and the court. If he had known that an appeal was the only proper jurisdictional avenue available to challenge the superior court's ruling he would have timely filed a notice of appeal instead of the extensive motion to reconsider. Citing People v. Snyder (1990) 218 Cal.App.3d480 (Snyder), People v. Martin (1963) 60 Cal.2d 615 (Martin) and People v. Hales (1966) 244 Cal.App.2d 507 (Hales), Cheruku asserts that at least three other courts faced with analogous facts have concluded that the doctrine of constructive filing should apply. We find each of these cases distinguishable.
In Snyder, supra, 218 Cal.App.3d480, following his conviction on drug charges, the defendant moved for a new trial, arguing that prejudicial expert testimony had been erroneously admitted. The hearing on the defendant's motion was continued for two weeks to allow the People an opportunity to prepare opposition to the motion. At the continued hearing, the court noted the People had filed no written opposition to the motion, and concluded their failure to file opposition constituted acquiescence in the defendant's motion. The court denied the People an opportunity to argue orally the issue of prejudice and, based on defendant's motion and the absence of written opposition, found prejudice and granted a new trial. (Id. at p. 489.)
Promptly, the People sought reconsideration of the order granting a new trial, arguing there was no statute or rule of court requiring written opposition to a motion. The People argued that the court erred in refusing to allow the People an opportunity to oppose the motion orally, and that it erred by failing independently to examine and reweigh the evidence before reaching its decision. Over the defendant's opposition the court granted the motion for reconsideration based on excusable neglect under Code of Civil Procedure section 473, vacated its previous order granting a new trial, and, following additional briefing, concluded the testimony of an expert witness was not sufficiently prejudicial to warrant a new trial. Accordingly, the court entered an order striking an enhancement, and thereafter denied the motion for new trial. (Snyder, supra, 218 Cal.App.3dat p. 489.) The defendant appealed. (Id. at p. 484.)
On appeal, the Snyder court held the trial court's order granting a new trial exhausted its authority on that issue, and the People's remedy was to pursue the appellate rights provided by statute rather than seek to vacate the previously entered order. (Snyder, supra, 218 Cal.App.3d at p. 491.) However, because the net effect of the court's opinion was to reinstate the original order granting the defendant a new trial the People should not be unfairly deprived of their right to prosecute an appeal from the original order granting a new trial. Although no appeal was taken from the original ruling, the Snyder court concluded that it was empowered to reinstate the People's appellate rights under the doctrine of constructive filing as amplified in People v. Martin, supra, 60 Cal.2d 615 and People v. Hales, supra, 244 Cal.App.2d 507. (Snyder, supra, 218 Cal.App.3dat pp. 493-494.)
The Snyder court observed, "Our review of [the Benoit] factors convinces us that application of the doctrine is appropriate here. The People's diligence is unquestioned. Within one week of the disputed ruling the People filed extensive points and authorities to challenge and seek reversal of the ruling, and thereafter prosecuted a hearing on their challenge with all deliberate speed." (218 Cal.App.3dat pp. 492-493.) Cheruku cannot meet the first of the Benoit factors because he was not diligent in challenging the superior court's July 10, 2008 order. He filed his motion to reconsider just three days before the notice of appeal deadline elapsed; that is 57 days after the July 10 order was made.
The Benoit court examined three general criteria to determine whether it was appropriate to invoke the constructive filing doctrine to permit a late-filed appeal: First, was the appellant diligent in asserting his challenge to the disputed ruling? Second, was the appellant's failure timely to appeal the disputed ruling principally attributable to the fault of others, or to the conduct of others, which lulled him into a false sense of security? Third, would permitting a late-filed appeal serve the interests of justice? (Benoit, supra, 10 Cal.3d at pp. 83-84, 86, 89.)
In Martin, supra, 60 Cal.2d 615, the defendant chose to represent himself at trial. The jury rendered guilty verdicts, at which time the defendant waived probation and time for sentencing. Judgment of conviction was entered and the defendant was sentenced to the state prison for the term prescribed by law. (Id. at p. 616.) Five days later, the defendant presented to the clerk a notice of motion for a new trial. The clerk filed the notice on the authority of the trial judge. The motion was set to be heard more than 10 days after the entry of judgment. On that date, the motion was argued and denied. Immediately following the denial, the defendant stated in open court that he would file his written notice of appeal, and requested the court to set bail pending appeal. During a short discussion on the question of whether the defendant was entitled to bail, neither the court nor the prosecuting attorney questioned the right to appeal. Bail was denied on that same day and the defendant presented his written notice of appeal. Again, the clerk, on the authority of the trial judge, filed it. (Ibid.) The People moved on appeal to have the appeal dismissed on the ground that the appeal was untimely. (Martin, supra, 60 Cal.2d at pp. 616-617.)
At the time of both Martin, supra, 60 Cal.2d 615 and Hales, supra, 244 Cal.App.2d 507, the California Rules of Court, former rule 31 provided only a 10 day filing period after judgment for a notice of appeal. (Chavez, supra, 30 Cal.4th at p. 656.) Effective January 1, 1972, rule 31was amended to extend from 10 days to 60 days the period in which to file a notice of appeal. The same amendments "eliminated" the provisions permitting a reviewing court to grant relief from default when a defendant could establish an appropriate excuse for the delay. (Benoit, supra, 10 Cal.3d 72, 84, fn. 12.)
The Supreme Court denied the People's motion to dismiss the appeal. The Martin court observed, "when a defendant has diligently sought to file a timely notice but has been frustrated due to some default on the part of public officials charged with the administration of justice, a late filing has been deemed sufficient." (Martin, supra, 60 Cal.2d at p. 617.) Again, we observe that Cheruku was not diligent in seeking to file his motion for reconsideration, nor was he frustrated due to some default on the part of public officials charged with the administration of justice in the 57 days leading up to his filing of the motion to reconsider.
In Hales the defendant moved for a new trial after the court had already lost jurisdiction to consider the motion. However, because the court indicated it was sympathetic to the motion, on advice of counsel, the defendant dismissed his notice of appeal in order to revest the trial court with jurisdiction. Thereafter, the trial court vacated the judgment and granted the motion for new trial. The People appealed. On appeal the appellate court ruled that the trial court lacked jurisdiction to vacate the judgment or to grant the motion for new trial, and hence reinstated the judgment of conviction. (Hales, supra, 244 Cal. App.2d. at pp. 508-511.) However, recognizing that the trial court's assumption of jurisdiction had misled the defendant into failing properly to appeal the judgment, and that injustice would result if the judgment were reinstated without allowing defendant an opportunity to appeal from such reinstated judgment, the Hales court invoked the constructive filing principles as amplified by Martin, supra, 60 Cal.2d 615 and revived the defendant's right to appeal from the reinstated judgment. (Id. at p. 515.) Here, as noted, nothing that the trial court did in the 57 days before Cheruku filed his motion to reconsider misled Cheruku into failing to properly appeal the court's July 8, 2008 order.
In this case, because neither of the two recognized constructive filing exceptions applies, and since we find Snyder, supra, 218 Cal.App.3d480, Martin, supra, 60 Cal.2d 615 and Hales, supra, 244 Cal.App.2d 507, to be distinguishable, we cannot grant Cheruku's request to treat his motion for reconsideration as a notice of appeal. As a result, we must dismiss the appeal on the ground that his notice of appeal was untimely. (Cal. Rules of Court, rule 8.308(a).)
Disposition
The appeal is dismissed.
WE CONCUR: RUSHING, P. J., PREMO, J.