re Garcia
Filed 1/14/13 In re Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE
DISTRICT
In re
MIGUEL GARCIA,
On Habeas
Corpus.
F065733
(Kings Super. Ct. No. 12W0122A)
THE COURT
name="_ftnref1" title="">*
Miguel
Garcia, petitioner, in pro. per.
Kamala
D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and John W. Powell, Deputy Attorneys General, for Respondent.
-ooOoo-
Petitioner seeks
leave to file a belated notice of appeal.
On March 20,
2012, petitioner pled no contest to voluntary
manslaughter (Pen. Code § 192, subd. (a). Petitioner claims that prior to sentencing he
unsuccessfully moved to withdraw his plea.
On May 30, 2012, petitioner was sentenced to 29 years in state
prison.
Petitioner asked
his attorney to file a notice of appeal
on his behalf. Despite counsel’s
agreement to file a notice of appeal, counsel failed to do so.
On July 15,
2012, petitioner signed a notice of appeal and a request for a certificate of
probable cause. The court deemed the
appeal inoperative on July 17, 2012. The
court denied petitioner’s request for a certificate of probable cause on July
24, 2012.
On September 18, 2012, petitioner filed the
instant petition for writ of habeas corpus asking leave to file a belated
appeal. On November 30, 2012, this court
issued an order granting the Attorney General leave to file a response limited
to the issue of whether petitioner should be granted leave to file a belated
notice of appeal. On December 14, 2012,
the Attorney General submitted an informal response informing this court that
it “does not oppose petitioner’s request to file a notice of appeal more than
60 days after sentencing.â€
A notice of
appeal and a statement in support of a certificate
of probable cause 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 [citation].†(
500.)
The trial court
denied the timely filed Request for a Certificate of Probable Cause on July 24,
2012. Consequently no purpose would be
served by granting petitioner leave to file a new request. (This court takes no position at this time on
the merits of the request for a Certificate of Probable Cause.) Petitioner is entitled to leave to file a belated
notice of appeal limited to a challenge to his “sentence or other matters
occurring after the plea that do not affect the validity of the plea†if he
determines such ground for appeal is appropriate.
Petitioner is
granted leave to file a notice of appeal “based on the sentence or other
matters occurring after the plea that do not affect the validity of the pleaâ€
on or before February 11, 2013, in Kings County Superior Court No.
11CM7083. Let a writ of habeas corpus
issue directing the Kings County Superior Court, if the court receives the
notice of appeal on or before February 11, 2013, to treat the notice of appeal
as being timely filed, and to process the request and the appeal in accordance
with the applicable rules of the California Rules of Court. This court takes no position at this time on
whether the denial of petitioner’s Request for a Certificate of Probable Cause
was appropriate.
and Peña, Jr., J.
