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Name: People v. Kang
Case #: B134480
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/12/2003
Subsequent History: Rehrg. den. 4/4/03
Summary

Appellant was sentenced in absentia to four life sentences under the One Strike law, plus 171 years in state prison. Appellant’s counsel filed a notice of appeal. A new counsel notified the court that he had been retained to represent appellant on appeal, but that he could not file a substitution because appellant was a fugitive. He was informed by the clerk that a fugitive could not appeal, and did not file a brief. The appeal was dismissed. Appellant was subsequently extradited from Korea and appeared before the court on a motion to vacate his sentence and motion for a new trial. The motion for new trial was denied, and the court vacated the original sentence and imposed the same prison term. A timely notice of appeal was filed from that sentencing. Appellant filed a motion to recall the remittitur and reinstate the original appeal, and consolidate it with the current appeal. The motion was based on the ineffective assistance of the counsel who had failed to file a brief in the original appeal. The motion was granted, and a brief was filed. The Attorney General moved to dismiss the consolidated appeals. The appellate court here denied the A.G.’s motion. The original appeal was properly dismissed, as appellant did not file a brief. There was no ineffective assistance of counsel, because the counsel was not authorized to file the appeal absent a signed substitution of counsel. However, there was no basis to disallow appellate review and it would work a palpable injustice on Kang.