Opinion
NOT TO BE PUBLISHED
Fresno Co. S.Ct. No. F098910195-7 ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Ken Taniguchi, Public Defender, and Paul Hinkly, Deputy Public Defender, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J. and Hill, J.
On January 26, 2010, petitioner filed a petition for writ of habeas corpus seeking leave to file a belated notice of appeal. The petition, prepared and filed by petitioner’s trial counsel, included a declaration signed under penalty of perjury, stating that petitioner asked counsel to file a timely notice of appeal on his behalf and through inadvertence, counsel failed to do so. By order filed on January 28, 2010, this court granted leave to the Attorney General to file an informal response to the merits of the petition for writ of habeas corpus. On February 16, 2010, the Attorney General filed an informal response stating the Attorney General had no objection to this court granting petitioner’s requested relief.
DISCUSSION
A notice of appeal must be filed within 60 days of the date of the rendition of the judgment. (Cal. Rules of Court, rule 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.3d715, 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.)
DISPOSITION
Petitioner is entitled to relief. Petitioner is directed to cause a notice of appeal to be filed on or before April 5, 2010, in the Fresno County Superior Court action No. F098910195-7.
Let a writ of habeas corpus issue directing the Fresno County clerk, if the clerk receives said notice and request on or before April 5, 2010, to file the notice of appeal, to treat the notice 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.