In re Gamboa CA5

Filed 10/17/24 In re Gamboa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F088435

DAVID GAMBOA, (Kern Super. Ct. No. BF191744A)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. David Gamboa, in pro. per., for Petitioner. Office of the State Attorney General, Sacramento, California, for Respondent. -ooOoo- Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. (In re Benoit (1973) 10 Cal.3d 72, 81–82.) Petitioner states that he relied on his counsel’s express assurances that his counsel would file a notice of appeal and that counsel did not do so. (Ibid.) The Attorney General does not oppose. Accordingly, we conclude petitioner is entitled to relief. DISPOSITION Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order in Kern County Superior Court case No. BF191744A.

* Before Levy, Acting P. J., Smith, J. and DeSantos, J.

Let a writ of mandate issue directing the Clerk of the Kern County Superior Court to file said request in its case No. BF191744A, to treat it as 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 if the clerk of that court receives said request on or before 60 days of the date of this order. This opinion is final forthwith as to this court.

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