Filed 5/12/22 In re Vanatti CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Lynden Vanatti, in pro. per., for Petitioner.

Office of the State Attorney General, Sacramento, California, for Respondent.

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This petition seeks a belated appeal from a judgment rendered on August 31, 2021. Petitioner asserts that at his sentencing hearing, counsel expressly agreed to file a notice of appeal on his behalf. Subsequently, petitioner contacted both this court and the Kern County Superior Court to confirm the status of his appeal. Once petitioner realized counsel did not file a timely notice of appeal, he filed the instant petition pursuant to In re Benoit (1973) 10 Cal.3d 73.

Upon review of the instant petition, this court filed an order which states as follows:

“The Attorney General is granted leave to file, on or before 20 days from the date of this order, an informal response to the petition in the above entitled action. The failure to file a response shall be deemed agreement that petitioner should be granted, without further proceedings, a belated appeal. (People v. Romero (1994) 8 Cal.4th 728.)

“In the event the Attorney General files an informal response, petitioner is granted leave to file a reply on or before 15 days after the informal response is filed.

“The Clerk/Executive Office of this court is directed to send a copy of the above-entitled petition to the Attorney General along with this order.”

In accordance with our order filed on April 14, 2022, the Attorney General’s failure to file a response within 20 days is deemed to constitute agreement that the requested relief be granted without further proceedings. (People v. Romero, supra, 8 Cal.4th at p. 740, fn. 7.) In addition to the Attorney General’s non-opposition, petitioner makes a prima facie showing that he relied upon counsel’s express assurances that counsel would file a notice of appeal. (In re Benoit, supra, 10 Cal.3d 73.) Therefore, we grant petitioner’s request to file a belated notice of appeal

DISPOSITION

Let a writ of habeas corpus issue directing the Clerk of the Superior Court for Kern County to file in its action No. BF172779B the notice of appeal executed by petitioner on December 14, 2021, to deem said notice of appeal to be timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court. The Clerk/Executive Officer of this court is directed to send a copy of the above entitled petition to the Clerk of the Superior Court of Kern County along with this order.

This opinion is final forthwith as to this court.

* Before Poochigian, Acting P. J., Franson, J. and DeSantos, J.