Filed 7/10/15 In re Donaldson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 SCOTT DONALDSON                                                  G052043

     on Habeas Corpus.                                                 (Super. Ct. No. 11HF2953)

                                                                       OPINION




                   Original proceedings; petition for a writ of habeas corpus to file a timely
notice of appeal. Petition granted.
                   Appellate Defenders, Inc., and Loleena Ansari for Petitioner.
                   Kamala D. Harris, Attorney General, and Julie L. Garland, Assistant
Attorney General for Respondent.
THE COURT: *
               Petitioner, Scott Donaldson, seeks relief from the failure to file a timely
notice of appeal. The petition is granted.
               Following a jury trial, Scott Donaldson, was convicted of vandalism in an
amount under $400, assault, and making annoying and harassing phone calls. According
to trial counsel’s declaration, when he discussed filing a notice of appeal, Donaldson
“explicitly stated he wanted to appeal the decision.” According to counsel, he prepared
and submitted the notice of appeal to his clerical staff to be filed on Donaldson’s behalf.
However, it was not until Donaldson inquired about the status of the appeal that counsel
learned for the first time that the appeal had not been filed. According to counsel,
Donaldson had been under the impression that a notice of appeal would be filed on his
behalf, and he “reasonably relied on me to do so.”
               The principle of constructive filing of the notice of appeal should be
applied in situations where trial counsel advises a criminal defendant that he, or she, will
file a notice of appeal on their client’s behalf, and then 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 him or
herself. In this case, Donaldson relied on trial counsel to file a timely notice of appeal on
his behalf. His reasonable reliance on counsel to file a timely notice of appeal entitles
him to the relief requested.
               The Attorney General does not oppose granting the petition 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, counsel is directed to
prepare and file a notice of appeal in Orange County case No. 11HF2953, and the Clerk


*   Before O’Leary, P.J., Aronson, J., and Ikola, J.

                                               2
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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