In re >Aviles>

 

 

 

 

 

 

 

 

 

 

 

Filed 12/12/13  In re Aviles 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CESAR AVILES, JR.         on Habeas Corpus.

G049294            (Super. Ct. No. 09NF2195)            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.

                        Appellate Defenders,
Inc., Anna M. Jauregui-Law for Petitioner.

                        Kamala D. Harris,
Attorney General, and Julie L. Garland, Assistant Attorney General for
Respondent.

 

 

*                      *                      *

 

 

THE
COURT: *

                        Cesar Aviles, Jr. seeks
relief from the failure to file a timely notice of appeal.  The petition is granted.

                        Cesar Aviles, Jr. was
sentenced to 17 years after a jury trial. 
According to Aviles’s
declaration filed in support of the petition seeking constructive notice of
appeal, he advised trial counsel at the sentencing hearing on March 4, 2011, that he wanted to
appeal his conviction.  According to Aviles,
counsel assured him that he would file a notice of appeal on his behalf and he relied
on counsel’s assurance that he would file the appeal.  Trial counsel’s declaration acknowledges that Aviles
asked him to file an appeal from his conviction, but as a result of unfortunate
medical circumstances to himself and family, counsel failed to file a notice of
appeal as requested by Aviles.

                        The principle of
constructive filing of the notice of appeal should be applied in situations
where a criminal defendant requests trial counsel to file a notice of appeal on
his behalf and counsel 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 would
file a notice of appeal, has a duty to file a proper notice of appeal, or tell
the client how to file it himself.  In
this case, trial counsel advised Aviles
that he would file a notice of appeal on his behalf.  Aviles’s
reasonable reliance on the promise of trial counsel to file a timely notice of
appeal entitles him to the relief requested.

                        The Attorney General
does not oppose Aviles’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 Aviles’s behalf, Attorney Anna
M. Jauregui-Law is directed to prepare and file a notice of appeal in Orange County case
number 09NF2195, and the clerk of the superior court is directed to accept the
notice for filing if presented within 30 days of this opinion becoming
final.  Further proceedings, including
the preparation of the record on appeal, are to be conducted according to the
applicable rules of court.  In the
interest of justice, the opinion in this matter is deemed final forthwith.