Filed 5/9/14 In re Guerrero 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FREDDY GUERRERO

 on Habeas Corpus.

 G049960

 (Super. Ct. No. 10NF1477)

 O P I N I O N

Original proceedings; petition for a writ of habeas corpus to file a timely 

notice of appeal. Petition granted.

Appellate Defenders, Inc., Michelle Rogers for Petitioner.

Kamala D. Harris, Attorney General, and Julie L. Garland, Assistant 

Attorney General for Respondent.

* * *
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THE COURT: *

Freddy Guerrero seeks relief from the failure to file a timely notice of 

appeal. The petition is granted.

After a jury trial, Freddy Guerrero was convicted of carrying a firearm 

during the commission of a street gang crime and being a prohibited person owning 

ammunition. The trial court found true two enhancements for participating in a criminal 

street gang and Guerrero was sentenced to 15 years in prison. According to Guerrero’s 

declaration, he advised counsel at the sentencing hearing on Friday December 13, 2013, 

that he wanted to appeal the judgment. According to Guerrero, trial counsel explained 

that he would file the notice of appeal the following Monday “and [he] relied on counsel 

to do so.”

On February 13, 2014, counsel filed a notice of appeal in G049687. On 

February 25, 2014, this court filed an order in case No. G049687 stating the court is 

considering dismissing the notice of appeal on the basis that the notice of appeal was not 

filed within 60 days from the date of judgment. (Cal. Rules of Court, rule 8.308.) 

Guerrero was invited to file points and authorities to explain why the appeal should not 

be dismissed and he failed to do so. Instead, he filed this petition for writ of habeas 

corpus seeking relief from the failure to file a timely notice of appeal. According to 

Guerrero, he did not learn of the untimely notice of appeal until contacted by Appellate 

Defenders, Inc.

According to trial counsel’s declaration, he did “not have a clear 

recollection of the events leading up to filing Mr. Guerrero’s notice of appeal,” but after 

determining that Guerrero’s case merited an appeal, he relied on his assistant to file the 

notice of appeal. The notice of appeal was filed two days after the 60 day deadline and 

 

* Before Aronson, Acting P. J., Ikola, J., and Thompson, J.
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according to counsel’s declaration, “[s]omething must have gone astray between [ ] 

signing the notice and then handing it to [the] assistant to be filed.”

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 Guerrero’s reasonable reliance on the 

promise of trial counsel to file a timely notice of appeal entitles him to the relief 

requested.

The Attorney General does not oppose Guerrero’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. The stay previously issued in case No. G049687 is 

DISSOLVED. Further proceedings, including the preparation of the record on appeal in 

case No. G049687, are to be conducted according to the applicable rules of court. In the 

interest of justice, the opinion in this matter is deemed final as to this court forthwith.