(1) The writ of habeas corpus may be used by a defendant lawfully in custody to seek relief from default in perfecting an appeal. ( Martin, supra, 58 Cal.2d at p. 141; In re Vallery (1992) 3 Cal.App.4th 1125, 1130 [ 5 Cal.Rptr.2d 74].) If a petitioner applies for a writ of habeas corpus with the Court of Appeal and is denied relief, he or she may request review by this court of the adverse determination. (Pen. Code, § 1506.)

In addition to Olgin, there are other cases in which similar institutional failures provided a basis for constructive filing so that a defendant retained reasonable access to the courts. (See e.g., In re Vallery (1992) 3 Cal.App.4th 1125, 1127-1128 [clerk mailed notice regarding appeal dismissal to incorrect address]; In re Fierro (1985) 169 Cal.App.3d 543, 547-548 [CDCR failed to manage system to allow prompt identification of inmates to receive notice of court orders].) We thus disagree with the People that our order granting constructive filing of the notice of appeal was improvidently made.

This case is similar to those where failures of prison and court officials resulted in an undue restriction on a defendant's right of reasonable access to the courts. (See In re Vallery (1992) 3 Cal.App.4th 1125, 1130 [incarcerated defendant entitled to relief because the court clerk's unawareness of defendant's correct address caused his mail to arrive late or not at all, interfering with his ability to retain counsel and prosecute appeal]; In re Fierro (1985) 169 Cal.App.3d 543, 547-548 [incarcerated defendant entitled to relief because the CDCR failed to develop procedures for promptly notifying its own identification bureau of prisoners' changes of address and the court clerk failed to determine his correct address, thus he was not timely notified his appeal was about to be dismissed]; People v. Hickok (1949) 92 Cal.App.2d 539, 541 [criminal appeal was mistakenly dismissed after notice of default was sent to wrong attorneys].)

This case bears similarities to those where failures of prison and court officials resulted in an undue restriction on a defendant's right of reasonable access to the courts. (See In re Vallery (1992) 3 Cal.App.4th 1125, 1130 [incarcerated defendant entitled to relief where court clerk's unawareness of defendant's correct address caused his mail to arrive late or not at all, interfering with his ability to retain counsel and prosecute appeal]; In re Fierro (1985) 169 Cal.App.3d 543, 547-548 [incarcerated defendant entitled to relief where failure of CDCR to develop procedures for promptly notifying its own identification bureau of prisoners' changes of address and court clerk's failure to determine his correct address resulted in defendant's failure to timely receive the notice that his appeal was about to be dismissed]; People v. Hickok (1949) 92 Cal.App.2d 539, 541 [criminal appeal was mistakenly dismissed after notice of default was sent to wrong attorneys].) One such case, People v. Olgin, where the court held that an institutional, clerical error merited application of constructive fi

We disagree that counsel's unsuccessful attempts to contact him are the equivalent of institutional mistake or delay that frustrates a defendant's otherwise diligent attempt to timely file a notice of appeal. (See In re Vallery (1992) 3 Cal.App.4th 1125 [incarcerated defendant entitled to relief where court clerk's unawareness of defendant's correct address caused his mail to arrive late or not at all, interfering with his ability to retain counsel and prosecute appeal]; In re Fierro (1985) 169 Cal.App.3d 543, 547-548 [incarcerated defendant entitled to relief where failure of Department of Corrections to develop procedures for promptly notifying its own identification bureau of prisoners' changes of address and court clerk's failure to determine his correct address resulted in defendant's failure to timely receive the notice that his appeal was about to be dismissed].) In sum, petitioner is not entitled to relief from filing his late notice of appeal under the doctrine of constructive filing.