Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County No. 08CF3296, James P. Marion, Judge. Petition granted.
Victoria Matthews under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent.
Before Sills, P. J., Aronson, J., and Ikola, J.
Petitioner, Enio Hernandez, seeks relief from the failure to file a timely notice of appeal from his criminal conviction. Following a jury trial, Hernandez was convicted of evading a peace officer while driving recklessly, possession of a firearm by a felon, being a gang member while carrying a loaded firearm in public, and aggravated trespassing and resisting and obstructing an officer, both for the benefit of a street gang. Gang enhancements were also found true and on September 18, 2009, Hernandez was sentenced to 10 years, 8 months in state prison. In his declaration, trial counsel states that after Hernandez was sentenced, Hernandez stated he wanted to file an appeal from his conviction. According to counsel, he advised Hernandez that he would file a notice of appeal on his behalf, but failed to do so when he attempted to filed the notice of appeal on November 20, 2009, three days after the statutory 60-day period within which to file a timely notice of appeal expired. As such, the superior court advised counsel that Hernandez’s notice of appeal was stamped “received” but not filed.
The Attorney General does not oppose granting the petition without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
The principle of constructive filing of the notice of appeal should be applied in situations where a criminal defendant requests trial counsel to file a notice of appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney who has been asked to file a notice of appeal on behalf of a client has a duty to file a proper notice of appeal. (Pen. Code § 1240.1, subd. (b).) Hernandez’s reasonable reliance on the promise of trial counsel to file a timely notice of appeal entitles him to the relief requested.
The petition is granted. On Hernandez’s behalf, Attorney Victoria Matthews is directed to prepare and file a notice of appeal in Orange County case number 08CF3296, and the clerk of the superior court is directed to accept the notice for filing if presented within 30 days of this opinion becoming final. Further proceedings, including the preparation of the record on appeal, are to be conducted according to the applicable rules of court. In the interest of justice, the opinion in this matter is deemed final forthwith.