In re Joseph S.

Full title: In re JOSEPH S., on Habeas Corpus.

Court: California Court of Appeals, Fourth District, Third Division

Date published: Dec 6, 2007

No. G039565 (Cal. Ct. App. Dec. 6, 2007)

Opinion

In re JOSEPH S., on Habeas Corpus. G039565 California Court of Appeal, Fourth District, Third Division December 6, 2007

NOT TO BE PUBLISHED

Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Super. Ct. No. DL027285. Richard Behn, Judge.

Law Offices of James Jay Seltzer, James Jay Seltzer for Petitioner.

Bill Lockyer, Attorney General, and Gary Schons, Assistant Attorney General for Respondent.

OPINION

THE COURT: ^*

* Before Sills, P.J., Aronson, J., and Fybel, J.

Petitioner, Joseph S., seeks relief from the failure to file a timely notice of appeal. The petition is granted.

The juvenile petition in this case includes 52 counts of misdemeanors alleged to have occurred before Joseph S. turned eighteen years old. On July 30, 2007, Joseph S. admitted 26 of the 52 counts in the petition. As a result of the admission, he was given credit for time served and ordered to comply with terms and conditions of probation. According to a declaration filed by appellate counsel, he was retained by Joseph S. to file a timely notice of appeal on his client’s behalf. According to appellate counsel, he incorrectly calendared the last day to file the notice of appeal, and the appeal was filed two days late.

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 has asked 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 is under a duty to either file the notice of appeal, or tell the client how to file it himself. In this case, trial counsel advised Joseph S. that he would file a notice of appeal on his behalf. His reasonable reliance on the promise of appellate counsel to file a timely notice of appeal entitles him to the relief requested.

The petition is granted. The Clerk of the Superior Court is directed to file the notice of appeal that was filed on October 1, 2007. 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 as to this court forthwith.