Zarazua

We publish this order to put to rest a challenge to a procedure commonly used by defendants to perfect appeals from judgments in criminal cases.

After his trial attorney failed to file a timely notice of appeal, despite a request to do so, defendant Sergio Zarazua asked this court to deem his notice of appeal to be timely under the “constructive filing doctrine.” (In re Benoit (1973) 10 Cal.3d 72, 85 [ 109 Cal.Rptr. 785 , 514 P.2d 97 ] (hereafter Benoit).) The People now move for us to vacate and reconsider our order granting defendant’s motion. They contend that a request for constructive filing of an appeal may be sought only by a petition for writ of habeas corpus filed first in the superior court. Alternatively, the People claim we should not have granted defendant’s motion for constructive filing of his appeal without waiting until expiration of the 15-day period for the People to oppose the motion.

As we will explain, when a notice of appeal in a criminal case is received by the trial court after the jurisdictional deadline to perfect the appeal, the appellate court may deem the notice of appeal to have been constructively filed in a timely manner if, prior to the…