Fear Not Law Articles: In re Garcia

In re Garcia

Filed 4/24/08 In re Garcia CA4/3

Received from court for posting 5/2/08

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JOSEPH GARCIA

on Habeas Corpus.

G040137

(Super. Ct. No. 06CF2890)

O P I N I O N

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, Richard M. King, Judge. Petition granted.

Law Offices of Bruce C. Bridgman and Sarah A. Stockwell for Petitioner.

Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.

* * *

THE COURT:*

Following his conviction and sentencing for residential burglary, petitioner Joseph Garcia conferred with his trial counsel, Kirt Hopson, to discuss his appellate rights. Petitioner asked, and counsel agreed, to file a notice of appeal. Unfortunately, the notice of appeal was served by counsel on the court reporter and not the superior court clerk. When counsel realized his error, the time within which to file a timely notice of appeal had expired by about two weeks. A petition for relief for failure to file a timely notice of appeal has been 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 the notice of appeal in criminal cases should be applied in situations where, as here, defendant timely requests trial counsel to file a notice of appeal, counsel advises defendant that a notice of appeal will be filed, but due solely to the inadvertence of counsel the notice of appeal is filed late by about two weeks. (See In re Benoit, supra, 10 Cal.3d at pp. 87-88.)

Good cause appearing, and the Attorney General having effectively waived the necessity of issuing an order to show cause, the petition is granted. On petitioners behalf, attorney Sarah A. Stockwell of the Law Offices of Bruce C. Bridgman is directed to prepare and file a notice of appeal in Orange County Superior Court case number 06CF2890, and the clerk of the superior court is directed to accept the filing, if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.

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* Before Sills, P. J., Rylaarsdam, J., and OLeary, J.

Description	Following his conviction and sentencing for residential burglary, petitioner Joseph Garcia conferred with his trial counsel, Kirt Hopson, to discuss his appellate rights. Petitioner asked, and counsel agreed, to file a notice of appeal. Unfortunately, the notice of appeal was served by counsel on the court reporter and not the superior court clerk. When counsel realized his error, the time within which to file a timely notice of appeal had expired by about two weeks. A petition for relief for failure to file a timely notice of appeal has been 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.
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