Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County No. 07CF0858, M. Marc Kelly, Judge. Petition granted.
Anna M. Jauregui for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.
OPINION
Before Rylaarsdam, Acting P. J., Moore, J., and Fybel, J.
Petitioner James Kelly Shepard’s motion to withdraw his guilty plea was denied. He told defense counsel, Oren Rosenthal of United Defense Group, that he wanted to file an appeal. Counsel agreed to file the notice of appeal on petitioner’s behalf. About one week before the time ran within which to file, counsel, whose offices are in Studio City, mailed the notice of appeal to the superior court. Mail delivery was slow, however. The notice arrived one day late and was declared nonoperative. This petition for relief was filed shortly after petitioner first became aware the notice of appeal had not been timely filed. (In re Benoit (1973) 10 Cal.3d 72.)
The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.
The principle of constructive filing of a notice of appeal in a criminal case is applied in situations where, as here, defendant asks trial counsel to file a notice of appeal on defendant’s behalf, counsel agrees to file such notice, but counsel fails to do so in a timely matter due to no fault of appellant. (In re Benoit, supra, 10 Cal.3d at pp. 87-88; see Pen. Code, § 1240.1, subd. (b).)
Good cause appearing, and the Attorney General having effectively waived the necessity of issuing an order to show cause, the petition for relief is granted. On petitioner’s behalf, attorney Anna M. Jauregui is directed to prepare and file a notice of appeal in Orange County Superior Court case number 07CF0858, and the clerk of the superior court is directed to accept the notice for filing, if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.