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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

RICARDO VILLANUEVA, On Habeas Corpus. F067876 (Fresno Super. Ct. No. F10905457)



### OPINION

THE COURT * ORIGINAL PROCEEDINGS; petition fo r 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. Mc Carroll, Deputy Atto rneys General, for Respondent.

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

† Judge of the Superior Court of Made ra County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.2 Petitioner seeks leave to file a belated notice of appeal from his May 24, 2013,

conviction. David R. Mugridge represen ted petitioner at trial. Ac cording to Mr. Mugridge’s declaration, petitioner reasonabl y expected Mr. Mugridge to file a timely notice of appeal. Due to inadvertence, Mr. Mugridge failed to do so. On August 30, 2013, petitione r filed the instant petition for writ of habeas corpus asking leave to file a belated appeal. On Oc tober 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 leav e to file a belated notice of appeal. On November 6, 2013, the Attorney Gene ral submitted an informal response informing this court that it does not oppose petitioner’s request to file a no tice of appeal more than 60 days after sentencing. A notice of appeal and a statement in su pport 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 crim inal 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 f ile 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 u nder a duty to file it, instruct the defendant how to file it, or secure other counsel for hi m [citation]; or if the attorney made a timely promise to file a notice of appeal, thereby i nvoking 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 Co unty Superior Court ca se No. F10905457.3 Let a writ of habeas corpus issue direc ting 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 pro cess the request and the appeal in accordance with the applicable rules of the California Rules of Court.