Opinion
G055970
04-12-2018
In re PHILLIP YVES PAGE on Habeas Corpus.
Appellate Defenders, Inc., and Cindi B. Mishkin for Petitioner. Xavier Becerra, Attorney General, and Julie L. Garland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF1349) OPINION Original proceedings; petition for a writ of habeas corpus to file a timely notice of appeal. Petition granted. Appellate Defenders, Inc., and Cindi B. Mishkin for Petitioner. Xavier Becerra, Attorney General, and Julie L. Garland, Assistant Attorney General for Respondent.
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Before O'Leary, P. J., Ikola, J., and Goethals, J.
Phillip Yves Page seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a jury trial Page was sentenced to 14 years, 8 months. In his declaration trial counsel states that after he advised Page of his right to appeal, Page stated he wanted to appeal the conviction. According to counsel he agreed to file a notice of appeal on Page's behalf but inadvertently miscalendared the last day to file the notice of appeal. When counsel attempted to file the notice of appeal on January 3, 2018, the superior court filed a letter stating the notice of appeal had been marked "'Received January 3, 2018, but not filed.'" According to the letter the last day to file a timely notice of appeal was January 2, 2018.
On the court's own motion and for good cause, the court takes judicial notice of the record in Superior Court case No. 17CF1349. (Evid. Code, § 452.) --------
The principle of constructive filing of the notice of appeal is applied in situations where trial 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 it himself. In this case, counsel advised Page that he would file a notice of appeal on his behalf. Page's reasonable reliance on the promise of counsel to file a timely notice of appeal entitles Page to the relief requested.
The Attorney General does not oppose Page'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 January 3, 2018. Further proceedings, including 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 in this court and the clerk of this court is directed to issue the remittitur forthwith.