Opinion
F043777.
10-28-2003
Jose Medina, in pro. per., for Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT*
STATEMENT OF THE CASE AND FACTS
On September 2, 2003, petitioner filed a petition for writ of habeas corpus seeking leave to file a belated notice of appeal from his April 28, 2003, conviction for assault by a life prisoner. He claims his trial counsel failed to file an appeal on his behalf after promising to do so. On September 26, 2003, trial counsel filed a declaration stating that he inadvertently failed to file an appeal as requested by petitioner.
On September 30, 2003, this court issued an order granting the Attorney General leave to file an informal response to the petition. The order provided that failure to file a response would be deemed agreement that the relief requested should issue peremptorily. The Attorney General did not file a response.
DISPOSITION
A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Cal. Rules of Court, rule 31(a).) Although a criminal defendant has the burden of timely filing a notice of appeal, the burden may be delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) "A criminal defendant seeking relief from his default in failing to file a timely notice of appeal is entitled to such relief, absent waiver or estoppel due to delay, if he made a timely request of his trial attorney to file a notice of appeal, thereby placing the attorney under a duty to file it, instruct the defendant how to file it, or secure other counsel for him [citation]; or if the attorney made a timely promise to file a notice of appeal, thereby invoking reasonable reliance on the part of the defendant [citation]." (In re Sanchez (1969) 1 Cal.3d 496, 500.)
Petitioner directed counsel to file an appeal on his behalf. Counsel failed to do so in a timely manner. Consequently petitioner is entitled to relief.
Petitioner is directed to cause a notice of appeal to be filed on or before November 14, 2003, in Kings County Superior Court action No. 01CM7757.
Let a writ of habeas corpus issue directing the Clerk of the Kings County Superior Court, if the clerk receives said notice on or before November 14, 2003, to file the notice, to treat it as being timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court.