Opinion
G064536
09-26-2024
In re MARTIN ARROYO, on Habeas Corpus.
Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent. Appellate Defenders, Inc., and Anna M. Jauregui-Law, for Petitioner.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to file a timely notice of appeal. Petition granted.
Super. Ct. No. 08ZF0026
Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.
Appellate Defenders, Inc., and Anna M. Jauregui-Law, for Petitioner.
OPINION
THE COURT:[*]
Martin Arroyo seeks relief from the failure to file a timely notice of appeal. The petition is granted.
In 2010 Arroyo was sentenced in superior court case No. 08ZF0026. In 2023, Arroyo's attorney filed a petition pursuant to Penal Code section 1170, subdivision (d)(1) and People v. Heard (2022) 83 Cal.App.5th 608. On September 26, 2023, the superior court denied the petition and according to counsel's declaration, Arroyo advised him that he wanted to file a notice of appeal. According to counsel, he prepared a notice of appeal on Arroyo's behalf and placed the document in a filing box to be filed by an office clerk, but it was never filed in superior court. According to counsel, when he checked on the status of the appeal in April 2024, he discovered there was no record that the notice of appeal had been filed. According to counsel, he immediately attempted to file a new notice of appeal, but the superior court marked the notice of appeal "Received," but did not file the notice of appeal because November 25, 2023, was the last day to file a timely notice of appeal. (Cal. Rules of Court, rule 8.308(d).)
The principle of constructive filing of the notice of appeal is applied in situations where counsel advises a criminal defendant that he will file a notice of appeal on his behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney who has advised his client that he will file a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file the notice of appeal himself. In this case, Arroyo's reasonable reliance on the promise of counsel to file a timely notice of appeal entitles petitioner to the relief requested.
The Attorney General does not oppose Arroyo's request for relief to file a late notice of appeal without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
The petition is granted. The Clerk of the Superior Court is directed to file the notice of appeal that was received but not filed on April 17, 2024. Further proceedings, including preparation of the record on appeal, are to be conducted according to the applicable rules of court. (Cal. Rules of Court, rule 8.320(d).)
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.
[*] Before Sanchez, Acting P. J., Motoike, J., and Delaney, J.