In re Villaneuva CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F067876

RICARDO VILLANUEVA, (Fresno Super. Ct. No. F10905457)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDINGS; petition for 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-

* Before Cornell, Acting P.J., Franson, J., and Oakley, J.

† Judge of the Superior Court of Madera County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Petitioner seeks leave to file a belated 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 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 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.