Filed 5/14/14 In re Martino CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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                                                                                  F068107

         PAULINO MARTINO,                                          (Tulare Super. Ct. No. VCF267271B)

                            On Habeas Corpus.                                        OPINION


                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         Paulino Martinez, in pro. per., for Petitioner.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for
Respondent.
                                                        -ooOoo-
                                          STATEMENT OF FACTS
         Petitioner filed a petition for writ of habeas corpus in this court that sought
permission to file a belated appeal from his June 14, 2013, felony conviction in Tulare
County Superior Court case No. VCF267271B. The convictions followed petitioner’s
entry of a nolo contendere plea. Petitioner claims his trial attorney failed to timely file a


*        Before Hill, P.J., Cornell, J., and Kane, J.
notice of appeal on his behalf despite being asked to do so. He also asserts that his trial
attorney failed to inform him of his right to appeal. The record shows a second attorney
told petitioner he had 90 days to file the notice of appeal. The second attorney shared the
same business address as petitioner’s trial counsel but did not represent petitioner at the
time the statement was made. Petitioner filed his notice of appeal within the 90 days but
the superior court rejected his notice as untimely.
                                        DISCUSSION
        A notice of appeal in a felony matter must be filed within 60 days of the date of
the rendition of the judgment. (Cal. Rules of Court, rules 8.304, 8.308.) Judgment is
rendered at the time it is orally pronounced. (People v. Thomas (1959) 52 Cal.2d 521,
529, fn. 3.) A criminal defendant bears the burden of timely filing a notice of appeal but
may delegate that burden to trial counsel. (In re Fountain (1977) 74 Cal.App.3d 715,
719.)
        In an appropriate case, this court has the power to grant a petitioner relief from the
failure to timely file a notice of appeal and/or request for certificate of probable cause as
required under California Rules of Court, rules 8.304(b) and 8.308, and Penal Code
section 1237.5. (In re Benoit (1973) 10 Cal.3d 72, 86-87, 89.) “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 an notice of appeal, thereby invoking reasonable
reliance on the part of the defendant [citation].” (People v. Sanchez (1969) 1 Cal.3d 496,
500.)
        In the present case, trial counsel did not timely file a notice of appeal on
petitioner’s behalf. Counsel did not advise petitioner how to file the document himself or



                                               2
arrange for other counsel to do so on his behalf. (In re Chavez (2003) 30 Cal.4th 643,
658 & fn. 7.)
         A second attorney erroneously advised petitioner he had 90 days to file the notice
of appeal. Petitioner relied on that advice and filed his notice of appeal within 90 days
only to have it rejected by the Clerk of the Superior Court of Tulare County as untimely.
                                        DISPOSITION
         Petitioner is entitled to relief. He is granted leave to file a notice of appeal on or
before 30 days from the date of the filing of this opinion, in Tulare County Superior
Court action No. VCF267271B.
         Let a petition for writ of habeas corpus issue directing the Clerk of the Superior
Court of Tulare County, if the court receives the notice of appeal on or before 30 days
from the date of the filing of this opinion, to treat the notice of appeal as timely filed, and
to process the appeal in accordance with the applicable rules of the California Rules of
Court.




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