Filed 12/7/18 In re Garcia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
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In re SALVADOR GARCIA
on Habeas Corpus.
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G056818
(Super. Ct. No. 15WF1006)
O P I N I O N |
Original proceedings; petition for a writ of habeas corpus to file a timely notice of appeal. Petition granted.
Appellate Defenders, Inc., and Leslie Ann Rose for Petitioner.
Xavier Becerra, Attorney General, and Julie L. Garland, Assistant Attorney General for Respondent.
* * *
THE COURT:*
Salvador Garcia seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a jury trial Garcia was sentenced to 40 years to life. In his declaration trial counsel states that after discussing issues that would be preserved for appeal, counsel advised petitioner that he would file a notice of appeal on his behalf. Counsel’s declaration states that although he prepared the notice of appeal, it was inadvertently never filed.
The principle of constructive filing of the notice of appeal is applied in situations where trial counsel advises a criminal defendant that he will file a notice of appeal on his behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney who has advised his client that he will file a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file it himself. In this case, counsel advised Garcia that he would file a notice of appeal on his behalf. Garcia’s reasonable reliance on the promise of counsel to file a timely notice of appeal entitles Garcia to the relief requested.
The Attorney General does not oppose Garcia’s request for relief to file a late notice of appeal without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
The petition is granted. On Garcia’s behalf, Attorney Leslie Ann Rose is directed to prepare and file a notice of appeal in Orange County Superior Court case No. 15WF1006, and the clerk of the superior court is directed to accept the notice for filing if presented within 30 days of this opinion becoming final. Further proceedings, including the preparation of the record on appeal are to be conducted according to the applicable rules of court.
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.
* Before Moore, Acting P. J., Ikola, J., and Thompson, J.
