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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

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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