In re Lopez CA4/3 ( 2013 )

Filed 8/1/13 In re Lopez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re VALENTIN LOPEZ G048526
on Habeas Corpus. (Super. Ct. No. 10HF0236)
OPINION
Original proceedings; petition for a writ of habeas corpus to file a timely
notice of appeal. Petition granted.
Valentin Lopez, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, and Julie L. Garland, Assistant
Attorney General for Respondent.
* * *
THE COURT: *
Valentin Lopez seeks relief from the failure to file a timely notice of
appeal. The petition is granted.
On October 12, 2012, Valentin Lopez was sentenced to two concurrent
terms of 15-years to life in prison as a result of a plea agreement. According to Lopez, at
the sentencing hearing he told counsel that he wanted to file an appeal, but instead of
assisting Lopez, who required the assistance of an interpreter, counsel advised Lopez to
file a petition for a writ of habeas corpus and said “that was his remedy.”
The principle of constructive filing of the notice of appeal should be
applied in situations where a criminal defendant has asked counsel to file a notice of
appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit
(1973) 10 Cal.3d 72, 87-88.) This is because a trial attorney is under a duty to either file
the notice of appeal, or tell the client how to file it himself. In this case, after Lopez was
sentenced, he asked trial counsel to file a notice of appeal. Instead of filing the notice of
appeal on Lopez’s behalf, or explaining to Lopez how he can file it himself, counsel
advised Lopez that filing a petition for writ of habeas corpus was his remedy and took no
further action. Based on the principles set forth in In re Benoit, Lopez was entitled to
advice from counsel explaining how to file a timely notice of appeal and therefore he is
entitled to the relief requested.
The Attorney General does not oppose Lopez’s request for relief to file a
late notice of appeal without the issuance of an order to show cause. (People v. Romero
(1994) 8 Cal.4th 728.)
The petition is granted. On petitioner’s behalf, Appellate Defenders, Inc. is
directed to prepare and file a notice of appeal, and if necessary the request for certificate
of probable cause, in Orange County case number 10HF0236, and the Clerk of the
* Before Rylaarsdam, Acting P.J., Moore, J., and Ikola, J.
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Superior Court is directed to accept the notice for filing if presented within 30 days of
this opinion becoming final. Further proceedings, including the preparation of the record
on appeal, are to be conducted according to the applicable rules of court. In the interest
of justice, the opinion in this matter is deemed final as to this court forthwith.
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