In re Drake CA5

Filed 6/13/24 In re Drake 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 F087862

GARNETT DRAKE, (Kern Super. Ct. No. BF115244A)

On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Peter Kang, Kern County Public Defender, and Kathleen Furlong, Deputy Public Defender, for Petitioner. Rob Bonta, Attorney General, and Max Feinstat, Deputy Attorney General, for Respondent. -ooOoo- This petition seeks a belated appeal from a September 15, 2023 judgment rendered at a resentencing hearing held pursuant to Penal Code section 1172.75. Petitioner urges this court to apply the constructive filing doctrine to permit such a belated filing. In response to this court’s request to file an informal response, the Attorney General does not oppose petitioner’s requested relief. Pursuant to the Attorney General’s response, this court may grant relief without further proceedings. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)

* Before Levy, Acting P. J., Smith, J. and Snauffer, J.

In addition to the Attorney General’s nonopposition, having read and considered the declaration of petitioner’s counsel, petitioner demonstrates to this court’s satisfaction that his forthcoming notice of appeal should be deemed timely filed under the constructive filing doctrine. (In re Benoit (1973) 10 Cal.3d 72.) Accordingly, we grant petitioner’s request to file a belated notice of appeal. DISPOSITION Petitioner is directed to file, on or before 60 days from the date of this opinion, a notice of appeal in the Superior Court of Kern County action No. BF115244A. Let a writ of habeas corpus issue directing the Clerk of the Superior Court of Kern County to file in its action No. BF115244A said notice of appeal, to deem said notice of appeal 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 notice on or before 60 days from the date of this opinion. This opinion is final forthwith as to this court.

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