Filed 3/17/21 In re Figueroa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ROBERT PHILLIP FIGUEROA G059945
on Habeas Corpus. (Super. Ct. No. C-78146)
OPINION
Original proceedings; petition for a writ of habeas corpus to file a timely
notice of appeal. Petition granted.
Frank S. Davis, Alternate Defender, Derek Bercher, Assistant Alternate
Defender, and Randy K. Ladisky, Senior Alternate Defender for petitioner.
Xavier Becerra, Attorney General, and Julie L. Garland, Assistant Attorney
General for Respondent.
* * *
THE COURT:*
Robert Phillip Figueroa seeks relief from the failure to file a timely notice
of appeal. The petition is granted.
On November 16, 2020, the superior court denied Figueroa’s petition for
resentencing pursuant to Penal Code section 1170.95. In his declaration, trial counsel
states that after the court denied the petition, Figueroa indicated that he wanted to appeal
the court’s ruling. According to counsel, he advised Figueroa that he would file the
notice of appeal “and that he need not do anything further.” Counsel’s declaration states
that he knew that Figueroa was relying on him to file a notice of appeal, but through
inadvertence he failed to file the notice of appeal in a timely manner. When counsel
attempted to file the notice of appeal on February 24, 2021, the superior court stamped
the notice of appeal “Received,” but did not file the notice of appeal. According to
counsel, the last day to file a timely notice of appeal was January 15, 2021.
The principle of constructive filing of the notice of appeal is applied in
situations where counsel advises a criminal defendant that he will file a notice of appeal
on his behalf, and then fails to do so in accordance with the law. (In re Benoit (1973) 10
Cal.3d 72, 87-88.) This is because an attorney who has advised his client that he will file
a notice of appeal has a duty to file a timely notice of appeal or tell the client how to file
it himself. In this case, counsel advised Figueroa that he would file a notice of appeal on
his behalf and then failed to do so. Figueroa’s reasonable reliance on the promise of
counsel to file a timely notice of appeal entitles Figueroa to the relief requested.
The Attorney General does not oppose Figueroa’s request for relief to file a
late notice of appeal without the issuance of an order to show cause. (People v. Romero
(1994) 8 Cal.4th 728.)
* Before Bedsworth, Acting P. J., Aronson, J., and Goethals, J.
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The petition is granted. The Clerk of the Superior Court is directed to file
the notice of appeal that was received but not filed on February 24, 2021. Further
proceedings, including preparation of the record on appeal, are to be conducted according
to the applicable rules of court. (Cal. Rules of Court, rule 8.320(d).)
In the interest of justice, the opinion in this matter is deemed final in this
court and the clerk of this court is directed to issue the remittitur forthwith.
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