In re Gonzales
Filed 7/14/09 In re Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MANUAL QUIROZ GONZALES, On Habeas Corpus. | F057364 (Fresno Sup. Ct. No. F07905785) |
THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Manual Quiroz Gonzales, in pro. per., for Petitioner.
No appearance for Respondent.
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Petitioner was convicted of discharge of a firearm on June 24, 2008. After sentencing, according to petitioner, he instructed his trial counsel to file a notice of appeal on his behalf. When petitioner realized that counsel had failed to do so, whether by inadvertence or misunderstanding, on August 18, 2008, petitioner deposited a notice of appeal in the Wasco State Prison mailbox.
Fresno County Superior Court received the notice of appeal on August 27, 2008. By a letter dated August 28, 2008, the Fresno County Superior Court informed petitioner that his notice of appeal, which was received on August 27, 2008, was not filed. The letter stated [a] search of our records shows that the date of the sentencing was on June 24, 2008 and the time to file a Notice of Appeal expired 60 days from that date.
On June 9, 2009, this court issued an order granting the Attorney General leave to file an informal response addressing whether the notice of appeal should be deemed timely filed pursuant to the mailbox rule of Houston v. Lack (1988) 487 U.S. 266. The order further provided: Failure to file a response may be deemed agreement that the requested relief should issue without further proceedings. No response was filed.
The prison-delivery rule or mailbox rule provides that the document is constructively filed when a prisoner properly delivers the document to prison officials for forwarding to the court. (Houston v. Lack, supra, 487 U.S. 266; People v. Slobodion (1947) 30 Cal.2d 362, 365.)
Petitioner submitted a declaration signed under penalty of perjury that he deposited his notice of appeal in the Wasco State Prison mail on August 18, 2008. Consequently, the appeal was timely filed.
Petitioner is directed to cause a notice of appeal to be filed in Fresno County Superior Court action No. F07905785 on or before 30 days from the date of the filing of this opinion.
Let a peremptory writ of habeas corpus directing the Clerk of the Fresno County Superior Court, if she receives the notice on or before 30 days from the date of the filing of this opinion, to file the notice, to treat it as being timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court.
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* Before Vartabedian, Acting P.J., Gomes, J. and Kane, J.
