In re Johnson CA5

Filed 7/13/23 In re Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F085993

TYRONE JOHNSON, (Kern Super. Ct. No. BF-171276)

On Habeas Corpus. OPINION

THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Tyrone Johnson, in pro. per., for Petitioner. Office of the State Attorney General, Sacramento, California, for Respondent. -ooOoo- This petition seeks a belated appeal from a judgment rendered on September 14, 2022. Petitioner asserts that at his sentencing hearing, counsel expressly agreed to file a notice of appeal on his behalf. Once petitioner realized counsel did not file a timely notice of appeal, petitioner promptly prepared a notice of appeal and certificate of probable cause and delivered the same to the trial court. Petitioner’s delay in researching his appellate rights was due to a prolonged lockdown at his custodial facility. Upon review of the instant petition, this court filed an order which states as follows: “The Attorney General is granted leave to file, on or before 20 days from the date of this order, an informal response to the petition in the above entitled

 Before Levy, Acting P. J., Peña, J. and Snauffer, J.

action. The failure to file a response shall be deemed agreement that petitioner should be granted, without further proceedings, a belated appeal. (People v. Romero (1994) 8 Cal.4th 728.) “In the event the Attorney General files an informal response, petitioner is granted leave to file a reply on or before 15 days after the informal response is filed.” In accordance with our order filed on May 25, 2023, the Attorney General filed a response conceding that petitioner’s allegations appear sufficient to make a prima facie showing for relief under the constructive filing doctrine set forth in In re Benoit (1973) 10 Cal.3d 72. In addition to the Attorney General’s non-opposition, petitioner makes a prima facie showing that he relied upon counsel’s express assurances that counsel would file a notice of appeal. (Id., at p. 73.) Therefore, we grant petitioner’s request to file a belated notice of appeal. DISPOSITION Let a writ of habeas corpus issue directing the Clerk of the Superior Court for Kern County to file in its action No. BF-171276 the notice of appeal and request for certificate of probable cause dated February 2, 2023, which was submitted with the petition in the above entitled matter. The Clerk/Executive Officer of this court is directed to forward a copy of the petition to the superior court. In accordance with California Rules of Court, rule 8.304, subdivision (b), the superior court is directed to sign and file either a certificate of probable cause or an order denying the certificate. It shall deem said notice of appeal to be 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. This opinion is final forthwith as to this court.