Filed 5/16/18 In re Figueroa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


In re

AURELIO FIGUEROA,

On Habeas Corpus.
F076947

(Tulare Super Ct. No. VCF331062)

OPINION

THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Lisa Bertolino, Tulare County Public Defender, Thomas McQuire, Assistant Public Defender, and Amber Miramontes, Deputy Public Defender, for Petitioner.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
-ooOoo-
Petitioner seeks leave to file a belated notice of appeal from his sentence that was rendered on March 22, 2017, in Tulare County Superior Court action No. VCF331062.
This court deems the “Request for Relief from Default Re: Notice of Appeal,” filed in the above entitled action on February 2, 2018, to be a petition for writ of habeas corpus. (Neal v. State of California (1960) 55 Cal.2d 11, 16.)
In February 2017, petitioner was found guilty by a jury. He asked his then attorney, Roland Soltesz, to file a notice of appeal and Soltesz said he would. No notice of appeal was filed.
This court granted leave to the Attorney General to file a response. The Attorney General conceded in its informal response filed on March 1, 2018, as follows:

“[Petitioner] filed in this Court on February 2, 2018, a request for relief from the default he incurred by not filing a timely notice of appeal from the judgment that the superior court imposed on March 22, 2017. [Petitioner] alleges that his trial counsel stated he would file an appeal in this case but then failed to do so. [Citation.] The lack of diligence in failing to file the instant request in a timely manner appears to be due to delay by the Tulare County Public Defender’s Office. [Citation.] [Petitioner’s] allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)”
Pursuant to the concession by the Attorney General, it is appropriate to grant petitioner a belated appeal.
DISPOSITION
Petitioner is directed to file, on or before 30 days from the date of this order, a notice of appeal in Tulare County Superior Court action No. VCF331062.
Let a writ of habeas corpus issue directing the Clerk of the Tulare County Superior Court to file said notice of appeal in action No. VCF331062, to deem said notice 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.