In re Marshall CA4/3

Filed 10/6/22 In re Marshall CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
G061828
In re HOWARD MARSHALL,
(Super. Ct. No. SWF009818)
on Habeas Corpus.
OPINION
Original proceedings; petition for writ of habeas corpus to file a late notice
of appeal. Petition granted.
Aaron J. Schechter for Petitioner.
Rob Bonta, Attorney General, and Charles G. Ragland, Senior Assistant
Attorney General for Respondent.
* * *
THE COURT:*
Petitioner Howard Marshall seeks relief from the failure to file a timely
notice of appeal, and to have it deemed constructively filed under the authority of In re
Benoit (1973) 10 Cal.3d 72. The petition is granted.
Petitioner is the defendant in the case of People v. Marshall, Riverside
County Superior Court Case No. SWF009818. He is currently serving a state prison
sentence of 18 years, 4 months after he was resentenced by the Riverside Superior Court
on April 25, 2022.
In March 2022, petitioner received a letter from the Riverside County
Public Defender’s Office, (Public Defender’s Office), informing him it was seeking to
have his five one-year prison priors stricken in accordance with Penal Code section
1172.75, 1 which rendered them invalid. Former code section 1171.1, was renumbered as
section 1172.75 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58
§10.) The letter asked him if he wanted to attend his resentencing hearing or if he wanted
to waive his right to attend. The letter instructed him to promptly write back regarding
his choice.
Petitioner immediately wrote a return letter to the Public Defender’s Office
advising them that he wished to attend all resentencing hearings, and that he did not wish
to waive his right to attend. After having sent this letter, petitioner never heard back from
them. Petitioner then sent two follow-up letters to the Public Defender’s Office to
inquire about when his resentencing hearing was scheduled to take place. No one
responded to his letters.
On April 25, 2022, the trial court recalled petitioner’s sentence pursuant to
section 1172.75. At petitioner’s resentencing hearing, the trial court granted Aimee
* Before Bedsworth, Acting P.J., Moore, J., and Motoike, J.
1
Undesignated statutory references are to the Penal Code.
2
Vierra (Vierra), an attorney in the Public Defender’s Office, permission ‘“to appear as a
friend of the court”’ on his case. Vierra represented to the trial court that she ‘“ha[d] not
had contact”’ with petitioner.
At the resentencing hearing, the court struck the five one-year prior prison
term enhancements. However, petitioner believes he was entitled to further sentencing
relief that the court did not consider and/or grant.
After the hearing was over, Vierra never contacted petitioner regarding the
results. She did not contact him regarding whether he wanted her to file a notice of
appeal on his behalf, and she did not advise him regarding how he could file a notice of
appeal on his own. Nor did she file a notice of appeal on his behalf. If attorney Vierra or
anyone from the Public Defender’s Office had advised petitioner that the trial court had
held a resentencing hearing on April 25, 2022, and that he needed to file a notice of
appeal within 60 days of that hearing to obtain full appellate review of the trial court’s
rulings, he would have done so.
In the beginning of June 2022, petitioner attended an early Parole Board
Hearing on his behalf. During the hearing, the Parole Board advised him that his parole
eligibility date was set for January 2023. Petitioner was surprised by this date because he
believed his parole eligibility date was set between 2026 to 2028.
Immediately following his early Parole Board hearing, petitioner filed a
written request with the prison records department to clarify his parole eligibility date.
The prison records department replied via a letter to him that he had been resentenced
and his parole eligibility was now set for January 2023.
Thus, after petitioner heard from the prison records department, he decided
the only way to challenge his right to be present at his resentencing hearing was to file a
motion for a new hearing. Petitioner did so. He filed a motion in propia persona for a
new resentencing hearing on the ground that the trial court violated his right to be present
at his last resentencing hearing. The court denied his motion on June 24, 2022, in a
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minute order. Petitioner timely appealed the court’s order of June 24, 2022, on July 25,
2022. 2
Attorney Schechter has made several attempts to speak to attorney Vierra to
ascertain why a notice of appeal was not filed in this matter. Attorney Vierra has not
replied to any of his emails or returned any of his phone calls.
The Attorney General does not oppose petitioner’s request for constructive
filing of his notice of appeal.
2
On June 14, 2022, petitioner filed a motion in propia persona for a new
resentencing hearing based on the ground that the trial court violated his right to be
present at his last resentencing hearing. In his motion, he told the court he never waived
his presence at his last resentencing hearing, and that he explicitly advised the Public
Defender’s Office that he wanted to be present at any resentencing hearings. He further
advised that he had not been made aware that any resentencing hearing had taken place
until long after the fact. On June 24, 2022, the trial court denied petitioner’s motion. On
July 25, 2022, petitioner timely filed a notice of appeal from the June 24, 2022, ruling.
Petitioner’s appeal of this ruling is now pending before this court as related Case No.
G061627.
On August 29, 2022, petitioner filed a motion for constructive notice of
appeal, and requested that this court deem petitioner’s July 25, 2022, notice of appeal to
include the trial court’s orders of April 25, 2022, and June 24, 2022. On September 12,
2022, respondent filed a letter of non-opposition to the motion.
On September 15, 2022, this court issued an order stating that petitioner’s
unopposed motion for constructive notice of appeal, “shall be decided in conjunction
with the decision on appeal.” The order further stated that “[t]he parties are invited to
include in their briefs analysis of whether this court has the power under existing case
law to grant the relief requested under the factual circumstances of this case and via the
procedural vehicle of a motion.”
Petitioner explains in the instant petition that, “Because this Court has stated
that it will not rule on petitioner’s motion for constructive notice of appeal until it issues
its opinion in petitioner’s pending appeal, petitioner has filed the instant petition for writ
of habeas corpus in order to fully preserve his rights and diligently pursue all available
remedies under the constructive filing doctrine (In re Benoit, supra, 10 Cal. 3d 72) as to
the trial court’s April 25, 2022 order, particularly in light of the exigent circumstances of
the pending appeal.”
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The principle of constructive filing of a late notice of appeal should be
applied in situations were a criminal defendant requests trial counsel to file a notice of
appeal on his behalf and counsel fails to do so in accordance with the law. (In re Benoit,
supra, 10 Cal.3d 72, at pp. 87-88.) Relief is also made available where trial counsel
renders a criminal defendant ineffective assistance of counsel entitling him or her to the
constructive filing of a timely notice of appeal. (Roe v. Flores-Ortega (2000) 528 U.S.
470.) In Roe, the United States Supreme Court concluded where trial counsel has been
ineffective in failing to properly consult with his or her client about the appeal process,
and that “constitutionally deficient performance deprives a defendant of an appeal that he
otherwise would have taken, the defendant has made out a successful ineffective
assistance of counsel claim entitling him to an appeal.” (Id. at p. 484.)
Here, petitioner made it abundantly clear to the Public Defender’s Office
that he wanted to attend his resentencing hearing. Attorney Viera was assigned to
represent him as a “friend of the court” at his April 25, 2022, hearing. She never
contacted him prior to the hearing and even told the court she had never spoken with him.
Although she appeared on his behalf, she never contacted him after the hearing concluded
to discuss the results with him. Nor did she contact him to inquire whether he wanted her
to file a notice of appeal on his behalf and she did not advise him about how to file a
notice of appeal on his own. Neither did she file a notice of appeal on his behalf.
The petition is granted. The clerk of the Superior Court is directed to treat
the notice of appeal filed on July 25, 2022, in Riverside County Superior Court case No.
SWF009818, as including both orders dated April 25, 2022, and June 24, 2022, and to
treat the notice of appeal as being timely filed as to each of them. In the interest of
justice, the opinion in this matter is deemed final as to this court forthwith. Petitioner’s
request that this court take judicial notice of the court file in People v. Marshall Case No.
G061627 is GRANTED.
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