In re Diaz CA5

Filed 8/18/22 In re Diaz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F084549

ANTONIO DIAZ, (Kern Super. Ct. No. SF019775B)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Central California Appellate Program and Bradley A. Bristow, for Petitioner. -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.) The Attorney General was provided the opportunity to respond and was notified that “[t]he failure to file a response shall be deemed agreement that petitioner should be granted, without further proceedings, a belated appeal.” The time to respond has elapsed, and the Attorney General did not provide a response. Petitioner, in his declaration, provided his statements under the penalty of perjury regarding his conversations near the time of sentencing during which counsel agreed to file a notice of appeal. Accordingly, we conclude petitioner is entitled to relief.

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

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 action No. SF019775B. Let a writ of mandate issue directing the Clerk of the Kern County Superior Court to file said request in its action No. SF019775B, 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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