Opinion
G064376
07-25-2024
In re HERMAN ECKSTEIN, on Habeas Corpus.
Appellate Defenders, Inc., and Cindi B. Mishkin, for Petitioner. Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to file a timely notice of appeal. No. 17CF0713 Petition granted.
Appellate Defenders, Inc., and Cindi B. Mishkin, for Petitioner.
Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.
OPINION
THE COURT: [*]
Herman Eckstein seeks relief from the failure to file a timely notice of appeal. The petition is granted.
On April 19, 2017, Eckstein was sentenced in superior court case No. 17CF0713. On September 21, 2023, Eckstein signed a document requesting representation by counsel for a petition for resentencing filed in the superior court. The document states counsel will "file a petition for resentencing, and file a notice of appeal if [the] petition is denied." On November 28, 2023, Eckstein was represented by counsel when the trial court denied his petition for resentencing pursuant to Penal Code section 1172.75. According to counsel's declaration, a timely notice of appeal was not filed on Eckstein's behalf. When counsel attempted to file a late notice of appeal on February 15, 2024, the superior court marked the notice of appeal "Received," but did not file the notice of appeal because January 27, 2024, 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, Eckstein'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 Eckstein'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 February 15, 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 O'Leary, P. J., Sanchez, J., and Motoike, J.