Filed 2/9/18 In re Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JOSE LUIS GONZALEZ

on Habeas Corpus.

G055846

(Super. Ct. No. 13HF3224)

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.
Sharon Petrosino, Public Defender, and Assistant Public Defender Catherine Learned for Petitioner.
Xavier Becerra, Attorney General, and Julie L. Garland, Assistant Attorney General for Respondent.


* * *


THE COURT:*
Jose Gonzalez seeks relief from the failure to file a timely notice of appeal. The petition is granted.
Following a jury trial, Gonzalez was sentenced to 80 years to life. In his declaration, trial counsel states that after he advised Gonzalez of his right to appeal, Gonzalez indicated he wanted to appeal the conviction. According to counsel, he agreed to file a notice of appeal on Gonzalez’s behalf, but as a result of being immersed in a serious and complex trial, he inadvertently failed to file a notice of appeal within 60 days from the date of the judgment.
The principle of constructive filing of the notice of appeal is applied in situations where trial counsel advises a criminal defendant that he will file a notice of appeal on his behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10 Cal.3d 72, 87-88.) This is because an attorney who has advised his client that he will file a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file it himself. In this case, counsel advised Gonzalez that he would file a notice of appeal on his behalf. Gonzalez’s reasonable reliance on the promise of counsel to file a timely notice of appeal entitles him to the relief requested.
The Attorney General does not oppose Gonzalez’s request for relief to file a late notice of appeal without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
The petition is granted. On Gonzalez’s behalf, Attorney Catherine Learned is ordered to prepare and file a notice of appeal in Orange County Superior Court case No. 13HF3224, and the clerk of the superior court is directed to file the notice of appeal if presented within 30 days of this opinion becoming final.
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.