In Re Grunau

Defendant Mark Daniel Grunau seeks recall of the remittitur in this matter on the ground that the 1997 dismissal of his appeal resulted from neglect and misconduct by his appellate attorney, and that relief was not sought sooner because that attorney consistently and plausibly misrepresented the status of the case to defendant through defendant’s father. We initially denied defendant’s motion but were directed by the Supreme Court to reconsider the matter. Having done so, we are persuaded that defendant is entitled to the relief he seeks. Accordingly, we will recall the remittitur so that the appeal may be determined on the merits.

Background

On March 21, 1996, a jury found defendant guilty of one count of sexually abusing a minor (Pen. Code, § 647.6). The trial court sentenced him to 25 years to life under the “Three Strikes” law. Defendant’s father, Dan Grunau (Mr. Grunau), retained Dan J. Foley to prosecute an appeal. Foley prepared and seasonably filed a notice of appeal, which was received by this court on September 6, 1996. He then failed to file an opening brief within the time allowed, and disregarded a notice from this court that failure to file a brief within…