Filed 11/14/13 In re Villaneuva 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



In re                                                                                  F067876

         RICARDO VILLANUEVA,                                         (Fresno Super. Ct. No. F10905457)

                            On Habeas Corpus.                                        OPINION


                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         David R. Mugridge, for Petitioner.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for
Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Franson, J., and Oakley, J.

†     Judge of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Petitioner seeks leave to file a belated notice of appeal from his May 24, 2013,
conviction.
       David R. Mugridge represented petitioner at trial. According to Mr. Mugridge’s
declaration, petitioner reasonably expected Mr. Mugridge to file a timely notice of
appeal. Due to inadvertence, Mr. Mugridge failed to do so.
       On August 30, 2013, petitioner filed the instant petition for writ of habeas corpus
asking leave to file a belated appeal. On October 17, 2013, this court issued an order
granting the Attorney General leave to file a response limited to the issue of whether
petitioner should be granted leave to file a belated notice of appeal. On November 6,
2013, the Attorney General submitted an informal response informing this court that it
does not oppose petitioner’s request to file a notice of appeal more than 60 days after
sentencing.
       A notice of appeal and a statement in support of a certificate of probable cause
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.)
                                       DISPOSITION
       Petitioner is entitled to relief. Petitioner is granted leave to file a notice of appeal
on or before December 17, 2013, in Fresno County Superior Court case No. F10905457.

                                               2
       Let a writ of habeas corpus issue directing the Fresno County Superior Court, if
the court receives the notice of appeal on or before December 17, 2013, to treat the notice
of appeal as being timely filed, and to process the request and the appeal in accordance
with the applicable rules of the California Rules of Court.




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