Filed 10/10/13 In re Spates 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ARTURO SPATES                                                    G048721

     on Habeas Corpus.                                                 (Super. Ct. No. 08HF2209)

                                                                       OPINION


                   Original proceedings; petition for a writ of habeas corpus to file a timely
notice of appeal. Petition granted.
                   Appellate Defenders, Inc., and Michelle C. Rogers for Petitioner.
                   Kamala D. Harris, Attorney General, and Julie L. Garland, Assistant
Attorney General for Respondent.


                                          *                  *                  *
THE COURT: *
               Arturo Spates seeks relief from the failure to file a timely notice of appeal.
The petition is granted.
               On October 7, 2011, Arturo Spates was sentenced to six years after a jury
trial. According to Spates’s declaration, he asked retained trial counsel at his sentencing
hearing to file a notice of appeal and “[counsel] promised me several times that he would
file a notice of appeal on my behalf.”
               According to the declaration prepared by trial counsel, he acknowledges
discussing the possibility of an appeal with Spates, but states he advised Spates to contact
Appellate Defenders, Inc. if he wished to pursue an appeal and to contact him if he could
not contact Appellate Defenders in time to file an appeal.
               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 counsel did
neither. Instead of filing the notice of appeal on Spates’s behalf, or explaining to Spates
how he could file the notice of appeal himself, counsel states he told Spates to contact
Appellate Defenders, but provided Spates with no contact information either verbally or
in writing such as a phone number or address that would be necessary to contact
Appellate Defenders. Based on the principles set forth in In re Benoit, if counsel would
not file a notice of appeal, Spates was entitled to advice from counsel explaining how to
file a timely notice of appeal himself and therefore he is entitled to the relief requested.




*   Before Moore, Acting P.J., Aronson, J., and Ikola, J.

                                               2
              The Attorney General does not oppose Spates’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 in Orange County case number 08HF2209,
and the Clerk of the 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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