Filed 5/1/14 In re Lovell 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 DAVID ANTHONY LOVELL                                             G049828

     on Habeas Corpus.                                                 (Super. Ct. No. 12NF2794)

                                                                       OPINION


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




                                          *                  *                  *
THE COURT: *
                David Anthony Lovell seeks relief from the failure to file a timely notice of
appeal. The petition is granted.
                In exchange for a five-year prison term, David Anthony Lovell pleaded
guilty to aggravated assault and battery causing serious bodily injury, and admitted an
enhancement for personally inflicting great bodily injury. At the sentencing hearing in
October 2013, the trial court denied Lovell’s motion to withdraw his plea, and he was
sentenced according to the terms of the plea agreement to five years in state prison.
According to Lovell’s declaration, after he was sentenced, he advised counsel that he
wanted to appeal the court’s decision by challenging the validity of the plea based on the
reasons stated in the motion to withdraw his guilty plea. Trial counsel’s declaration
confirms that Lovell stated he wanted to appeal the denial of his motion to withdraw his
guilty plea and that he “reasonably relied on [counsel] to do so.” According to counsel,
he filed a timely notice of appeal based on the sentence or other matters occurring after
the plea, but inadvertently failed to check the box indicating the appeal also challenged
the validity of the plea, and he also failed to request a certificate of probable cause.
                The principle of constructive filing of the notice of appeal should be
applied in situations where a criminal defendant asks 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 a trial attorney who has been asked to file a
notice of appeal on behalf of a client has a duty to file a proper notice of appeal or tell the
client how to file it himself. In this case Lovell reasonably relied on the promise of trial
counsel to file a proper notice of appeal in accordance with the law. In the interest of
justice, counsel’s failure to file a notice of appeal with a request for a certificate of
probable cause entitles Lovell to the relief requested.


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

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              The Attorney General does not oppose Lovell’s request for relief without
the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728.)
              The petition is granted. Appellate counsel is ordered to file an amended
notice of appeal and request for certificate of probable cause on Lovell’s behalf within 30
days from the date of this opinion becoming final. The Clerk of the Superior Court is
directed to file the amended notice of appeal and request for certificate of probable cause
if presented to the superior court within 30 days from the date of this opinion becoming
final. The superior court is ordered to rule on Lovell’s request for a certificate of
probable cause within 20 days from the date the request is filed. In the interest of justice,
the opinion in this matter is deemed final as to this court forthwith.




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