Filed 12/12/13 In re Galvan 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 JAVIER GALVAN                                                    G049104

     on Habeas Corpus.                                                 (Super. Ct. No. 11CF2417)

                                                                       OPINION


                   Original proceedings; petition for a writ of habeas corpus to file a timely
notice of appeal. Petition granted.
                   Michael Ian Garey for Petitioner.
                   Kamala D. Harris, Attorney General, and Julie L. Garland, Assistant
Attorney General for Respondent.




                                          *                  *                  *
THE COURT: *
                Javier Galvan seeks relief from the failure to file a timely notice of appeal.
The petition is granted.
                After Javier Galvan admitted a probation violation in case number
11CF2417, the trial court imposed the previously suspended five-year prison term. At
the sentencing hearing, Galvan had 442 days of actual credit, and although he argued he
was entitled to day for day conduct credits, he only received 66 days of conduct credit at
the time of the pronouncement of judgment. According to trial counsel’s declaration,
about three weeks after the sentencing hearing, he received a letter from Galvan asking
counsel to file a notice of appeal on his behalf regarding his custody credits. According
to counsel’s declaration, through inadvertence and clerical error he failed to file a timely
notice of appeal, but nonetheless prepared a late notice of appeal to be filed in superior
court. According to superior court, the late notice of appeal was stamped “received” but
not filed because it was received six days beyond the 60-day deadline to file a timely
notice of appeal. (Cal. Rules of Court, rule 8.308.)
                The principle of constructive filing of the notice of appeal should be
applied in situations where a criminal defendant requests trial 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 an attorney, who has advised his client that
he would file a notice of appeal, has a duty to file a proper notice of appeal, or tell the
client how to file it himself. In this case, trial counsel advised Galvan that he would file a
notice of appeal on his behalf. Galvan’s reasonable reliance on the promise of trial
counsel to file a timely notice of appeal entitles him to the relief requested.




*   Before Rylaarsdam, Acting P. J., Fybel, J., and Ikola, J.

                                               2
              The Attorney General does not oppose Galvan’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. The Clerk of the Superior Court is directed to file
the notice of appeal that was stamped “received” but not filed on September 27, 2013.
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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