In re Wilson CA5

Filed 9/24/21 In re Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F083030

JOSEPH WILSON, (Kings Super. Ct. No. 95CM1143)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Joseph Wilson, in propria persona, for Petitioner. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent. -ooOoo- Petitioner seeks permission to file a belated notice of appeal under the constructive filing doctrine set forth in In re Benoit (1973) 10 Cal.3d 73 (Benoit). In an informal response, the Attorney General contends petitioner “failed to explain the approximate 11-month delay between receiving the trial court’s order and attempting to appeal .…” While we recognize this delay was substantial, we conclude petitioner has demonstrated adequate justification for the delay. Based on the record provided, it appears the trial court erroneously failed to appoint petitioner counsel after filing a facially sufficient

* Before Poochigian, Acting P.J., Peña, J. and DeSantos, J.

Penal Code section 1170.95 petition. (People v. Lewis (2021) 11 Cal.5th 952.) We conclude this failure significantly undermined petitioner’s ability to effectuate his right to appeal the denial of his Penal Code section 1170.95 resentencing petition. 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 Kings County Superior Court action No. 95CM1143. Let a writ of mandate issue directing the Clerk of the Superior Court for Kings County to file said request in its action number No. 95CM1143, 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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