In re Gamboa CA5 ( 2024 )

Filed 10/17/24 In re Gamboa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 F088435
DAVID GAMBOA, (Kern Super. Ct. No. BF191744A)
On Habeas Corpus. OPINION
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
David Gamboa, in pro. per., for Petitioner.
Office of the State Attorney General, Sacramento, California, for Respondent.
-ooOoo-
Petitioner seeks permission to file a belated notice of appeal under the doctrine of
constructive filing. (In re Benoit (1973) 10 Cal.3d 72, 81–82.) Petitioner states that he
relied on his counsel’s express assurances that his counsel would file a notice of appeal
and that counsel did not do so. (Ibid.) The Attorney General does not oppose.
Accordingly, we conclude petitioner is entitled to relief.
DISPOSITION
Petitioner is granted leave to file a notice of appeal on or before 60 days from the
date of this order in Kern County Superior Court case No. BF191744A.
* Before Levy, Acting P. J., Smith, J. and DeSantos, J.
Let a writ of mandate issue directing the Clerk of the Kern County Superior Court
to file said request in its case No. BF191744A, to treat it as 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 if the clerk of that court receives said request on or before
60 days of the date of this order.
This opinion is final forthwith as to this court.
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