In re Villaneuva
Petitioner seeks leave to file a belated notice of appeal from his May 24, 2013, conviction.
David R. Mugridge represented petitioner at trial. According to Mr. Mugridge’s declaration, petitioner reasonably expected Mr. Mugridge to file a timely notice of appeal. Due to inadvertence, Mr. Mugridge failed to do so.
On August 30, 2013, petitioner filed the instant petition for writ of habeas corpus asking leave to file a belated appeal. On October 17, 2013, this court issued an order granting the Attorney General leave to file a response limited to the issue of whether petitioner should be granted leave to file a belated notice of appeal. On November 6, 2013, the Attorney General submitted an informal response informing this court that it does not oppose petitioner’s request to file a notice of appeal more than 60 days after sentencing.
A notice of appeal and a statement in support of a certificate of probable cause must be filed within 60 days of the date of the rendition of the judgment. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304, 8.308.) Although a criminal defendant has the burden of timely filing a notice of appeal, the burden may be delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) “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 [citation].†(People v. Sanchez (1969) 1 Cal.3d 496, 500.)
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