In re Murry
Filed 9/6/07 In re Murry CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re LUIS MURRY, on Habeas Corpus. | A118676 (Contra Costa County Super. Ct. No. 5-060197-1) |
BY THE COURT*:
Petitioner Luis Murry seeks relief from trial counsels failure to file a timely notice of appeal.
Petitioner was convicted after a jury trial of attempted kidnapping (Pen. Code, 207, 664), inflicting corporal injury ( 273.5, subd. (a)), assault ( 240), and assault with force ( 245, subd. (a)(1)). On March 20, 2007, petitioner was sentenced to five years in state prison.
According to petitioners trial counsel, petitioner asked her to file an appeal on his behalf on the day he was sentenced. Counsel states she filed a notice of appeal, but due to an error in calculating the due date, she filed the notice three days late, on May 24, 2007.
Petitioner asks this court to treat the notice of appeal as timely filed. The Attorney General has replied to our request for an informal response by stating he stipulates to the relief being granted so that petitioners appeal may be heard. Given the stipulation, formal issuance of an order to show cause is not necessary. (See People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)
The appeal will be considered timely under the doctrine of constructive filing. (See In re Benoit (1973) 10 Cal.3d 72, 86-89; see also Roe v. Flores-Ortega (2000) 528 U.S. 470, 484-485.) Petitioner has demonstrated both diligence and that he is entitled to relief.
DISPOSITION
The petition for writ of habeas corpus is granted. The notice of appeal filed May 24, 2007, shall be deemed timely filed. The appeal shall proceed under appeal number A117950. The Clerk of the Contra Costa County Superior Court is directed to prepare the record on appeal in People v. Luis Murry, Contra Costa Superior Court Case Number 05-060197-1. This decision shall be final as to this court immediately.
The clerk of this court shall file a copy of this decision in number A117950.
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* Ruvolo, P. J., Sepulveda, J., Rivera, J.
