Filed 4/28/16 In re Aguilar 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 AGUILAR                                                   G053435

     on Habeas Corpus.                                                 (Super. Ct. No. 11HF0530)

                                                                       OPINION


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




                                          *                  *                  *
THE COURT:*
                Petitioner, Javier Aguilar, seeks relief from the failure to file a timely notice
of appeal from his criminal conviction. We agree Aguilar is entitled to relief and the
petition is granted.
                Following a jury trial, Javier Aguilar was convicted of a number of criminal
offenses and sentenced to 45 years to life. In his declaration, trial counsel states that after
the sentencing hearing, Aguilar advised him that he wanted to appeal his conviction.
According to trial counsel, he advised Aguilar that he would file a notice of appeal on his
behalf, but due to an error, the notice of appeal was inadvertently filed two days late.
(Cal. Rules of Court, rule 8.308(a).) When Aguilar attempted to file his notice of appeal,
the superior court stamped his notice of appeal “‘Received 08/27/15, but not filed,’” and
transmitted a letter to counsel explaining the last day to file a timely notice of appeal was
August 25, 2015.
                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 principle of constructive filing of the notice of appeal is applied in
situations where trial counsel advises a criminal defendant that he will file a notice of
appeal on his client’s behalf, and then fails to do so in accordance with the law. (In re
Benoit (1973) 10 Cal.3d 72, 87-88.) Because trial counsel has a duty to file a proper
notice of appeal on his client’s behalf, (Pen. Code § 1240.1, subd. (b)) Aguilar’s
reasonable reliance on counsel’s promise to file a timely notice of appeal entitles him to
the relief requested.
                The petition is granted. The Clerk of the Superior Court is directed to file
the notice of appeal that was received but not filed on August 27, 2015. Further
proceedings, including preparation of the record on appeal, are to be conducted according


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

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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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