In re Chacon
Filed 1/13/10 In re Chacon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ARMANDO LOPEZ CHACON, On Habeas Corpus. | F058902 (Merced Sup. Ct. No. SUF29497) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Morse & Pfeiff and Thomas M. Pfeiff for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Respondent.
-ooOoo-
On November 23, 2009, petitioner filed a petition for writ of habeas corpus seeking relief to file a belated notice of appeal. The petition reflects that on September 4, 2009, petitioner was convicted after a jury trial of violation of Penal Code section 187 along with accompanying enhancements. On that same date, petitioners attorney advised petitioner he would file a notice of appeal on petitioners behalf.
On or about October 1, 2009, petitioners attorney and his staff prepared a notice of appeal which was placed in the attorneys law office court file, a file that contains papers to be filed in court. For reasons not set forth in the record, the notice of appeal was not filed or processed by the Merced County Superior Court. When trial counsel became aware of the same, he promptly filed a notice of appeal on petitioners behalf. The instant petition for writ of habeas corpus seeking leave to file a belated notice of appeal followed.
By an order filed on November 30, 2009, this court granted the Attorney General leave to file an informal response to the merits of the petition for writ of habeas corpus.
On December 22, 2009, the Attorney General filed a letter brief stating it had no opposition to the court granting relief to allow processing of petitioners appeal despite the late filing of the notice of appeal.
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.) A criminal defendant has the burden of timely filing a notice of appeal, but 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]. (People v. Sanchez (1969) 1 Cal.3d 496, 500.)
Let a writ of habeas corpus issue directing the Clerk of the Superior Court of Merced County to treat the notice of appeal filed in Merced County Superior Court action No. SUF29497 filed in the Merced County Superior Court on November 19, 2009, as being timely filed, and to proceed in accordance with the applicable rules of the California Rules of Court.
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* Before Ardaiz, P.J., Hill, J. and Kane, J.
