Filed 5/12/22 In re Vanatti CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re F083697
LYNDEN VANATTI, (Kern Super. Ct. No. BF172779B)
On Habeas Corpus. OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
Lynden Vanatti, in pro. per., for Petitioner.
Office of the State Attorney General, Sacramento, California, for Respondent.
-ooOoo-
This petition seeks a belated appeal from a judgment rendered on August 31,
2021. Petitioner asserts that at his sentencing hearing, counsel expressly agreed to file a
notice of appeal on his behalf. Subsequently, petitioner contacted both this court and the
Kern County Superior Court to confirm the status of his appeal. Once petitioner realized
counsel did not file a timely notice of appeal, he filed the instant petition pursuant to In re
Benoit (1973) 10 Cal.3d 73.
* Before Poochigian, Acting P. J., Franson, J. and DeSantos, J.
Upon review of the instant petition, this court filed an order which states as
follows:
“The Attorney General is granted leave to file, on or before 20 days
from the date of this order, an informal response to the petition in the above
entitled action. The failure to file a response shall be deemed agreement
that petitioner should be granted, without further proceedings, a belated
appeal. (People v. Romero (1994) 8 Cal.4th 728.)
“In the event the Attorney General files an informal response,
petitioner is granted leave to file a reply on or before 15 days after the
informal response is filed.
“The Clerk/Executive Office of this court is directed to send a copy
of the above-entitled petition to the Attorney General along with this
order.”
In accordance with our order filed on April 14, 2022, the Attorney General’s
failure to file a response within 20 days is deemed to constitute agreement that the
requested relief be granted without further proceedings. (People v. Romero, supra, 8
Cal.4th at p. 740, fn. 7.) In addition to the Attorney General’s non-opposition, petitioner
makes a prima facie showing that he relied upon counsel’s express assurances that
counsel would file a notice of appeal. (In re Benoit, supra, 10 Cal.3d 73.) Therefore, we
grant petitioner’s request to file a belated notice of appeal
DISPOSITION
Let a writ of habeas corpus issue directing the Clerk of the Superior Court for
Kern County to file in its action No. BF172779B the notice of appeal executed by
petitioner on December 14, 2021, to deem said notice of appeal to be timely filed, and to
proceed with the preparation of the record on appeal in accordance with the applicable
rules of the California Rules of Court. The Clerk/Executive Officer of this court is
directed to send a copy of the above entitled petition to the Clerk of the Superior Court of
Kern County along with this order.
This opinion is final forthwith as to this court.
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