In re Valencia CA5

Filed 5/1/15 In re Valencia CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re F070826

RAUL A. VALENCIA, (Stanislaus Super. Ct. No. 1453984)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDING; petition for writ of habeas corpus. Raul A. Valencia, in pro. per., 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 permission to file a belated appeal by way of a petition for writ of habeas corpus. We grant petitioner’s request based on petitioner’s timely filing of his notice of appeal. Petitioner’s additional habeas claims are denied without prejudice for consideration in the appeal.

* Before Kane, A.P.J., Detjen, J., and Smith, J.

STATEMENT OF FACTS On December 12, 2013, petitioner was convicted of three counts of robbery with the use of a deadly weapon. He was sentenced six months later on June 20, 2014, to 32 years 8 months in prison. On August 14, 2014, due to counsel’s failure to file a notice of appeal, petitioner filed his own notice of appeal in Stanislaus County Superior Court. In the notice of appeal, petitioner mistakenly indicated the date of the rendition of judgment as December, 12, 2013 (the date of his conviction), instead of June 20, 2014 (the date of his sentencing). The superior court did not catch his mistake, and deemed his notice of appeal untimely.1 On January 22, 2015, petitioner filed a writ of habeas corpus in this court. On March 13, 2015, this court invited the Attorney General to respond to this court’s considering granting the petition for habeas corpus because it appeared the notice of appeal was timely filed. On April 3, 2015, the Attorney General filed an informal response informing this court that it does not oppose petitioner’s request to file a belated appeal. Despite petitioner’s error of indicating his December 12, 2013, conviction as the date of rendition of judgment, instead of his June 20, 2014, sentencing, petitioner timely filed his notice of appeal on August 12, 2014, under California Rules of Court, rule 8.308(a). DISPOSITION Petitioner is entitled to relief. If petitioner still wishes to appeal, he must file a new notice of appeal within 30 days from the filing date of this opinion in Stanislaus County Superior Court, case No. 1453984.