In re Hernandez
Filed 8/30/07 In re Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re ABRAHAM HERNANDEZ on Habeas Corpus. | G039014 (Super. Ct. No. 02CF2160) O P I N I O N |
Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. Petition granted.
Appellate Defenders, Inc., and David K. Rankin for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.
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THE COURT:*
Petitioner Abraham Hernandez was sentenced to prison following his conviction by a jury of numerous crimes. It is undisputed that at the sentencing hearing petitioner told trial counsel he wanted to appeal, and that his attorney promised he would file a notice of appeal on his behalf. Although trial counsel prepared a notice of appeal, one was never filed and trial counsel does not know why. A petition for relief for failure to file a timely notice of appeal was quickly filed by Appellate Defenders, Inc. (See In re Benoit (1973) 10 Cal.3d 72.)
The Attorney General was served with a copy of the petition. He advises us he does not oppose the relief requested and thus relief may be granted without the filing of an order to show cause.
The principle of constructive filing of the notice of appeal should be applied in situations where, as here, a criminal defendant requests trial counsel to file a notice of appeal on his behalf, counsel fails to do so in accordance with the law, and petitioners reliance on counsels promise to perform was reasonable. (See In re Benoit, supra, 10 Cal.3d at pp. 87-88.) Given those are the facts here, the relief sought by petitioner is plainly warranted.
Good cause appearing, the petition is granted without the necessity of the filing of an order to show cause. On petitioners behalf, attorney David Rankin is directed to prepare and file a notice of appeal in Orange County Superior Court case number 02CF2160, and the clerk of the superior court is directed to accept the filing if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.
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* Before Rylaarsdam, Acting P. J., OLeary, J., and Ikola, J.
