NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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In re
RUSSELL JASON DAVIS,
On Habeas Corpus.
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F077170
(Kern Super. Ct. Nos. BF153366A, BF166967A)
OPINION
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THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Russell Jason Davis, in pro. per., for Petitioner.
No appearance for Respondent.
-ooOoo-
Russell Jason Davis (petitioner) seeks permission to file a belated notice of appeal by way of a petition for writ of habeas corpus, to challenge his sentence following a December 1, 2017, conviction and sentencing for vehicle theft with a prior felony grand theft involving a vehicle in violation of Penal Code section 666.5,[1] and escape from prison without use of force in violation of section 4532, subdivision (b)(2).
STATEMENT OF THE FACTS
Kern County Deputy Public Defender Nick Roth represented petitioner at trial. In his petition, petitioner stated that on January 1, 2018, he sent Roth a letter asking for clarification of a sentencing discrepancy between Kern County Superior Court’s minute order and the abstract of conviction. Petitioner alleges he asked Roth to correct this discrepancy with an appeal.
Roth sent petitioner a response clarifying petitioner’s sentence, and describing the discrepancy as simply “an error/typo.” Roth did not indicate he had filed, or intended to file, an appeal.
Further, on February 8, 2018, petitioner received a copy of a letter sent by the California Department of Corrections Legal Processing Unit to the Kern County Superior Court, requesting clarification of petitioner’s sentence. On March 11, 2018, petitioner attempted to file a notice of appeal. On March 20, 2018, petitioner filed a petition for writ of habeas corpus seeking leave to file a belated notice of appeal. Roth declined this court’s request to respond to the instant petition.
On June 22, 2018, this court issued an order granting the Attorney General leave to file a response, the absence of which would be deemed agreement that petitioner should be granted, without further proceedings, a belated appeal. The Attorney General did not file a response.
DISCUSSION
A notice of appeal must be filed within 60 days after the judgment or order being appealed to confer appellate jurisdiction on this court. (Cal. Rules of Court, rule 8.308(a).) An appealable judgment in a criminal case is generally rendered at the time of sentencing. (§ 1237, subd. (a).) Based on petitioner’s December 1, 2017, sentencing, petitioner was required to file a timely notice of appeal in the trial court no later than January 30, 2018.
A criminal defendant has the burden of timely filing a notice of appeal, but that burden may be delegated to counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) When applicable, the doctrine of constructive filing allows an untimely filed notice of appeal to be deemed timely if the defendant relied upon the promise of trial counsel to timely file the notice on the defendant’s behalf, and displayed diligence in seeing that his attorney has discharged this responsibility. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.) “A criminal defendant seeking relief from his default in failing to file a timely notice of appeal is entitled to such relief, absent waiver or estoppel due to delay, if he made a timely request of his trial attorney to file a notice of appeal, thereby placing the attorney under a duty to file it, instruct the defendant how to file it, or secure other counsel for him [citation]; or if the attorney made a timely promise to file a notice of appeal, thereby invoking reasonable reliance on the part of the defendant.” (People v. Sanchez (1969) 1 Cal.3d 496, 500.) Reasonable doubts as to the veracity of a petitioner’s allegations in these matters are to be resolved in favor of the petitioner to protect the right of appeal rather than forfeit it on technical grounds. (Cf. People v. Rodriguez (1971) 4 Cal.3d 73, 79; see In re Benoit, supra, 10 Cal.3d at p. 89.)
In petitioning this court, petitioner declares under penalty of perjury that he asked his trial attorney to file an appeal to correct a sentencing discrepancy on January 1, 2018. Petitioner further states he discovered an appeal was not filed on February 8, 2018, after he received a copy of the California Department of Corrections letter to Kern County Superior Court. Petitioner’s attorney declined to respond to the allegations. The Attorney General also declined to respond to the allegations, which this court deems agreement that petitioner should be granted a belated appeal.
Although petitioner does not allege that he received confirmation from Roth that a notice of appeal was to be filed, petitioner’s request that Roth file an appeal is sufficient reliance to satisfy the constructive filing doctrine. “ ‘[T]he trial attorney is under no obligation to represent the defendant on the appeal, but where the defendant clearly indicates, as he did here, that he desires to appeal, the trial attorney is under a duty not to ignore that request. The trial attorney is under a duty either to file the notice of appeal, or to instruct the defendant as to the proper procedure, or to see that the defendant has counsel to do these things for him.’ ” (In re Benoit, supra, 10 Cal.3d at pp. 87-88.)
Based on petitioner’s statement that he asked his attorney to file an appeal, and the absence of contradicting statements from petitioner’s attorney or opposition from the Attorney General, we find petitioner relied on his counsel to file an appeal, and diligently pursued the appeal by promptly filing a petition for writ of habeas corpus once he discovered no appeal had been filed. Therefore, we grant petitioner’s request to file a belated notice of appeal.
DISPOSITION
Petitioner is granted leave to file a notice of appeal on or before 30 days from the date of this opinion, in Kern County Superior Court case Nos. BF153366A and BF166967A.
Let a writ of habeas corpus issue directing the Clerk of the Kern County Superior Court, if the court receives the notice of appeal on or before 30 days from the date of this opinion, to treat the notice of appeal as being timely filed, and to process the appeal in accordance with the applicable rules of the California Rules of Court.
This opinion is final forthwith as to this court.
