In re Valencia
Filed 5/22/06 In re Valencia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re CHRISTOPHER VALENCIA on Habeas Corpus. | G036914 (Super. Ct. No. 00CF2212) O P I N I O N |
Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Richard Toohey, Judge. Petition granted.
Dennis P. O'Connell for Petitioner.
Bill Lockyer, Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent.
* * *
THE COURT:*
Petitioner, Christopher Valencia, seeks relief from the failure to file a timely notice of appeal. The petition is granted.
After a jury convicted Christopher Valencia of five counts of robbery, he was sentenced to 34 years to life. According to a declaration by trial counsel made under penalty of perjury, on the day Valencia was sentenced, December 16, 2005, he advised Valencia that he would file a notice of appeal on his behalf. According to counsel, after he promised Valencia that he would file a notice of appeal, members of Valencia's family explained that they retained appellate counsel and the new attorney would file the notice of appeal. According to counsel, in March 2006, Valencia's family advised him that appellate counsel had not been retained, and as a result, a notice of appeal was never filed.
The Attorney General does not oppose granting the petition without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant relies on counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney is under a duty to either file the notice of appeal, or tell the client how to file it himself. In this case, trial counsel specifically told Valencia on the day that he was sentenced that he would file a notice of appeal on his behalf. Valencia's reasonable reliance that trial counsel would file a timely notice of appeal entitles him to the relief requested.
The petition is granted. Trial counsel Dennis P. O'Connell is directed to prepare and file a notice of appeal in Orange County case No. 00CF2212, and the clerk of the superior court is directed to accept the notice for filing if presented within 20 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 as to this court forthwith. (Cal. Rules of Court, rule 24(b)(3).)
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Apartment Manager Lawyers.
* Before Rylaarsdam, Acting P.J., O'Leary, J., and Moore, J.
