>In re
Villaneuva

 

 

 

 

 

 

 

 

 

Filed 11/14/13  In re Villaneuva 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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              RICARDO VILLANUEVA,                                       On Habeas Corpus.

F067876   (Fresno Super. Ct. No. F10905457)   >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            ORIGINAL PROCEEDINGS; petition for href="http://www.fearnotlaw.com/">writ of habeas corpus.  

            David R. Mugridge, for Petitioner.

            Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie
A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Respondent.

-ooOoo>-

Petitioner seeks leave to file a belated href="http://www.mcmillanlaw.com/">notice of appeal from his May 24, 2013, conviction.

David R. Mugridge represented petitioner at trial.  According to Mr. Mugridge’s declaration,
petitioner reasonably expected Mr. Mugridge to file a timely notice of
appeal.  Due to inadvertence, Mr.
Mugridge failed to do so.

On August 30, 2013, petitioner filed the instant petition for href="http://www.fearnotlaw.com/">writ of habeas corpus asking leave to
file a belated appeal.  On October 17, 2013, this court issued an
order granting the Attorney General leave to file a response
limited to the issue of whether petitioner should be granted leave to file a
belated notice of appeal.  On November 6,
2013, the Attorney General submitted an informal response
informing this court that it does not oppose petitioner’s request to file a
notice of appeal more than 60 days after sentencing.   

A notice of appeal and a statement in support of a href="http://www.mcmillanlaw.com/">certificate of probable cause must be
filed within 60 days of the date of the rendition of the judgment.  (Pen. Code, § 1237.5; Cal. Rules of
Court, rules 8.304, 8.308.)  Although a
criminal defendant has the burden of timely filing a notice of appeal, 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.)

DISPOSITION

Petitioner is entitled to relief. 
Petitioner is granted leave to file a notice of appeal on or before
December 17, 2013, in Fresno County Superior Court case No. F10905457. 

            Let a writ of habeas corpus issue
directing the Fresno County Superior Court, if the court receives the notice of
appeal on or before December 17, 2013, to treat the notice of appeal as being
timely filed, and to process the request and the appeal in accordance with the
applicable rules of the California Rules of Court.