Opinion
G045970 Super. Ct. No. 09NF0993
12-09-2011
In re TEOFILO EPIFANIO LOPEZ on Habeas Corpus.
Anita P. Jog under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Original proceedings; petition for a writ of habeas corpus to file a late notice of appeal. Petition granted.
Anita P. Jog under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Respondent. THE COURT:
Before Rylaarsdam, Acting, P.J., O'Leary, J., and Fybel, J.
Following a jury trial, petitioner, Teofilo Epifanio Lopez, was sentenced to 60 years to life. According to Lopez's declaration, when the trial court reminded counsel to start the "appeal process" at the sentencing hearing, counsel responded by stating that it had already been started. According to Lopez's declaration, it had always been his intention to appeal the judgment, so when trial counsel stated he had already started the appeal, he relied on counsel's representation and did nothing further to preserve his right to appeal. Accordingly, Lopez seeks relief from the failure to file a timely notice of appeal seven months after sentencing.
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 relies on 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 the appeal himself. In this case, Lopez's reasonable reliance on counsel's representation to the trial court that the appeal had been started entitles Lopez to the relief requested.
The petition is granted. On Lopez's behalf, Attorney Anita P. Jog is directed to prepare and file a notice of appeal in Orange County case number 09NF0993, 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.