In re Flores>

 

 

 

 

 

 

 

 

 

 

Filed 7/19/13  In re Flores
CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re ADOLFO AGUILAR FLORES         on Habeas Corpus.

G048527            (Super. Ct. No. 10CF1723)            O P I N I O N

 

                        Original proceedings;
petition for a writ of habeas corpus
to file a timely notice of appeal. 
Petition granted.

                        Appellate Defenders,
Inc., and Cindi B. Mishkin for Petitioner.

                        Kamala D. Harris,
Attorney General, and Julie L. Garland, Assistant Attorney General for
Respondent.

 

*                      *                      *

 

 

 

THE
COURT: href="#_ftn1" name="_ftnref1" title="">*

                        Petitioner, Adolfo
Aguilar Flores, seeks relief from the failure to file a timely notice of
appeal.  The petition is granted.

                        Following a trial, a
jury convicted Flores of four felony offenses and he was
ordered to serve two consecutive 15-year-to-life sentences, for a total term of
30 years to life, plus a 10-year determinate term imposed consecutive to the
determinate term.  In his declaration,
trial counsel states that based on Flores’s actions at
the time of the sentencing hearing on November
9, 2012, and their earlier communications, he knew Flores
wanted to appeal the guilty verdicts in this case.  According to trial counsel, he intended to
file a valid notice of appeal, but unfortunately miscalendared the date when
the notice of appeal was due to be filed and entered the wrong date.  Trial counsel’s declaration states that when
he attempted to file the notice of appeal on January 11, 2013, the superior court stamped the notice of
appeal “Received but not Filed.”

                        The principle of
constructive filing of the notice of appeal should be applied in situations
where trial counsel takes it upon himself to file a notice of appeal on his
client’s behalf and fails to do so in accordance with the law.  (In re
Benoit (1973) 10 Cal.3d 72, 87-88.) 
This is because a trial attorney is under a duty to either file the
notice of appeal, or tell the client how to file it himself.  In this case, Flores
relied on trial counsel to file a timely notice of appeal on his behalf.  His reasonable reliance on counsel to file a
timely notice of appeal entitles him to the relief requested.

                        The Attorney General
does not oppose granting the petition without the issuance of an order to show
cause.  (People v. Romero (1994) 8 Cal.4th 7728.)

                        The petition is
granted.  The Clerk of the Superior Court
is directed to file the notice of appeal that was “received” but not filed on January 11, 2013.  Further

proceedings,
including the preparation of the record on appeal, are to be conducted
according to the applicable rules of court. 
In the interest of justice, the opinion in this matter is deemed final
as to this court forthwith.