Filed 1/9/20 In re Velasquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ANDREW FRANCISCO VELASQUEZ,

On Habeas Corpus.

F080330

(Tulare Super. Ct. No. VCF211156A)

OPINION

THE COURT

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Andrew Francisco Velasquez, in pro. per., for Petitioner.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Max Feinstat, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

This petition seeks a belated appeal from a judgment rendered on June 12, 2019. Petitioner asserts that at that hearing, trial counsel informed him that counsel would be filing a notice of appeal.

In a letter dated September 19, 2019, which was after the time for filing a notice of appeal expired, petitioner was informed that trial counsel would not be filing a notice of appeal.

In a letter dated October 17, 2019, the Tulare County Superior Court Clerk informed petitioner that the notice of appeal the clerk received on October 1, 2019, was untimely.

This court filed an order which stated as follows:

“The Attorney General is granted leave to file on or before 30 days from the date of this order an informal response to the petition in the above entitled action. The failure to file a response or otherwise oppose petitioner’s request for a belated appeal will be deemed agreement that such relief should issue.”

On January 3, 2020, the response of the Attorney General was filed. That response states as follows:

“Petitioner filed in this Court on December 4, 2019, a request for relief from the default he incurred by not filing a timely notice of appeal from the June 12, 2019 hearing at which the sentencing court declined to exercise its discretion to strike petitioner’s gang allegation under Penal Code section 1385. Petitioner alleges that his appointed counsel stated he would file an appeal in this case but then failed to do so. … Petitioner’s allegations appear to be sufficient to make a prima facia showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Florez Ortega (2000) 528 U.S. 470, 480.)”

This court deems the response filed on January 3, 2020, by the Attorney General to be agreement that petitioner is entitled to a belated appeal.

Let a writ of habeas corpus issue directing the Clerk of the Superior Court for Tulare County to file in its action No. VCF211156A the notice of appeal it received on October 1, 2019, to deem said notice of appeal to be timely filed, to prepare the appropriate record on appeal and to cause said record to be filed as an appeal in this court in accordance with the applicable rules of the California Rules of Court .

This opinion is final forthwith as to this court.