Filed 11/8/23 In re Garza CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

In re F086882 RUBEN GARZA, (Merced Super. Ct. Nos. 23-CR-02218, 20-CR-03754) On Habeas Corpus.

OPINION THE COURT ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Ruben Garza, 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.) Respondent filed a response to the request stating that petitioner’s “allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)”

Accordingly, we conclude petitioner is entitled to relief.

 Before Poochigian, Acting P. J., Smith, J. and DeSantos, J.

DISPOSITION Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order in Merced County Superior Court action Nos. 23-CR-02218 and 20-CR-03754.

Let a writ of mandate issue directing the Clerk of the Merced County Superior Court to file said request in its action Nos. 23-CR-02218 and 20-CR-03754, to treat them 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.

To the extent petitioner seeks to raise the sentencing claims stated in the petition for writ of habeas corpus attached to his request to file a notice of appeal under the constructive filing doctrine, this court notes the potential to raise these claims in his direct appeal. (In re Dixon (1953) 41 Cal.2d 756, 759.) The court expresses no opinion as to the merits of those claims.