Filed 1/29/15 In re Lovett CA5




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT



In re                                                                                   F069808

               EVAN J. LOVETT,                                      (Merced Super. Ct. No. CRM021408)

                            On Habeas Corpus.                                       OPINION



                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         Evan J. Lovett, in pro. per., for Petitioner.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff
and Respondent.


                                                        -ooOoo-




        Before Gomes, Acting P.J., Poochigian, J., and Peña, J.
                                      BACKGROUND
        Petitioner seeks leave to file a belated notice of appeal from his September 10,
2013, conviction for first degree murder with special circumstances.
        William A. Davis represented petitioner at trial. According to Mr. Davis’
declaration, petitioner reasonably expected Mr. Davis to file a timely notice of appeal.
Due to inadvertence, Mr. Davis failed to do so.
        On July 31, 2014, petitioner filed the instant petition for writ of habeas corpus
seeking leave to file a belated notice of appeal and claiming trial counsel was ineffective
for failing to call his family as witnesses and advising petitioner not to testify. On
September 29, 2014, this court issued an order granting the Attorney General leave to file
a response.
        On December 11, 2014, the Attorney General filed an informal response
informing this court that it does not oppose petitioner’s request to file a belated notice of
appeal. The Attorney General, however, claimed petitioner failed to show a prima facie
case for relief on the ground counsel was ineffective for failing to call his family as
witnesses and advising petitioner not to testify.
        A notice of appeal must be filed within 60 days of the date of the rendition of the
judgment. (Pen. Code, § 1237.5; Cal. Rules of Court, rules 8.304, 8.308.) Although a
criminal defendant has the burden of timely filing a notice of appeal, the burden may be
delegated to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715, 719.) “A criminal
defendant seeking relief from his default in failing to file a timely notice of appeal is
entitled to such relief, absent waiver or estoppel due to delay, if he made a timely request
of his trial attorney to file a notice of appeal, thereby placing the attorney under a duty to
file it, instruct the defendant how to file it, or secure other counsel for him [citation]; or if
the attorney made a timely promise to file a notice of appeal, thereby invoking reasonable
reliance on the part of the defendant [citation].” (People v. Sanchez (1969) 1 Cal.3d 496,
500.)

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                                       DISPOSITION
       Petitioner is entitled to relief. Petitioner is granted leave to file a notice of appeal
on or before 30 days from the date of this opinion, in Merced County Superior Court case
No. CRM021408.
       Let a writ of habeas corpus issue directing the Merced County Superior Court, if
the court receives the notice of appeal on or before 30 days from the date of this opinion,
to treat the notice of appeal as being timely filed, and to process the appeal in accordance
with the applicable rules of the California Rules of Court.
       In regard to petitioner’s contention that trial counsel was ineffective for failing to
call his family as witnesses and advising petitioner not to testify, the petition is denied
without prejudice.




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