In re Ortiz CA5 ( 2016 )

Filed 4/22/16 In re Ortiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 F073094
DAKAR MANUEL ORTIZ, (Fresno Super. Ct. No. F14902196)
On Habeas Corpus. OPINION
THE COURT*
ORIGINAL PROCEEDING; petition for writ of habeas corpus.
Dakar Manuel Ortiz, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Brian G. Smiley and Max Feinstat, Deputy Attorneys General, for Respondent.
-ooOoo-
Petitioner seeks leave to file a belated notice of appeal from his May 20, 2015,
conviction for assault with a semiautomatic firearm, use of a firearm and infliction of
great bodily injury, pursuant to a plea of no contest.
On January 26, 2016, petitioner filed the instant petition for writ of habeas corpus
seeking leave to file a belated notice of appeal and claiming trial counsel was ineffective
for failing to file an appeal on his behalf as requested. On February 11, 2016, this court
sent a letter to trial counsel affording counsel the opportunity to respond to the petition.
* Before Levy, A.P.J., Gomes, J., and Franson, J.
Counsel did not file a response. On March 17, 2016, this court issued an order granting
the Attorney General leave to file a response to the petition. On April 6, 2016, the
Attorney General filed a response stating that “Defendant’s allegations appear to be
sufficient to make a prima facie showing for relief from default under the Sixth
Amendment right to counsel.”
A notice of appeal 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
and a certificate of probable cause, if appropriate, on or before 30 days from the date of
this opinion, in Fresno County Superior Court case No. F14902196.
Let a writ of habeas corpus issue directing the Clerk of the Fresno County
Superior Court, if the court receives the notice of appeal and the certificate for probable
cause on or before 30 days from the date of this opinion, to treat the notice of appeal and
the certificate as being timely filed, and to process the appeal in accordance with the
applicable rules of the California Rules of Court.
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