Opinion
F076115
11-09-2017
In re KURT SANCHEZ, On Habeas Corpus.
Kurt Sanchez, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. Nos. PCF298173B, PCF298244) OPINION THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Kurt Sanchez, in pro. per., for Petitioner. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent.
Before Poochigian, A.P.J., Detjen, J., and Peña, J. --------
-ooOoo-
Petitioner seeks leave to file a belated notice of appeal from his January 18, 2017, conviction pursuant to a plea of no contest.
On August 11, 2017, petitioner filed the instant petition for writ of habeas corpus seeking leave to file a belated notice of appeal, claiming trial counsel was ineffective for failing to file an appeal on his behalf as requested. On August 17, 2017, this court sent a letter to trial counsel affording counsel the opportunity to respond to the petition. Counsel did not file a response. On September 19, 2017, this court issued an order granting the Attorney General leave to file a response to the petition. On October 11, 2017, the Attorney General filed a response stating, "Petitioner's allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)"
DISCUSSION
A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304, 8.308.) 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." (People v. Sanchez (1969) 1 Cal.3d 496, 500.)
DISPOSITION
Petitioner is granted leave to file a notice of appeal and request for a certificate of probable cause, if appropriate, on or before 30 days from the date of this opinion, in Tulare County Superior Court action Nos. PCF298173B and PCF298244.
Let a writ of habeas corpus issue directing the Clerk of the Tulare County Superior Court, if the court receives the notice of appeal and the request for a certificate for probable cause on or before 30 days from the date of this opinion, to treat the notice of appeal and the request as being timely filed, and to process the appeal in accordance with the applicable rules of the California Rules of Court.