In re Mares CA4/3

Filed 10/13/22 In re Mares 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

G061818 In re LAWRENCE ALBERT MARES, (Super. Ct. No. 13CF0191) on Habeas Corpus. OPINION

Original proceeding; petition for writ of habeas corpus to file a late notice of appeal. Petition granted. Appellate Defenders, Inc., and Leslie Ann Rose for Petitioner. Rob Bonta, Attorney General, and Charles C. Ragland, Senior Assistant Attorney General for Respondent.

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THE COURT:* Petitioner Lawrence Albert Mares 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. After he was convicted by a jury, petitioner was sentenced to three years plus life, plus 25 years-to-life in state prison. He appealed his conviction. In an appeal, this court affirmed the judgment of conviction but remanded for the limited purpose of allowing the trial court to exercise its discretion pursuant to Penal Code section 12022.53, subdivision (h). (People v. Mares (Jul. 26, 2018, G053959) [nonpub. opn.].) On August 2, 2019, the court denied petitioner’s motion for resentencing. Based on the date of the hearing, the 60-day deadline for filing a notice of appeal in petitioner’s case was October 1, 2019. Petitioner, who was present at his resentencing hearing, was represented at that hearing by retained attorney Early M. Hawkins. Petitioner told attorney Hawkins that he wanted to appeal from the court’s denial of his sentencing motion. Over the period of the next three years the COVID-19 pandemic slowed court proceedings. Increasingly concerned about the status of his appeal because he did not receive an update from counsel, petitioner and other family members attempted to contact attorney Hawkins but were unable to reach him. Finally, in June 2022, petitioner wrote to Appellate Defenders, Inc. (ADI), to find out whether an appeal had been filed in his case. He discovered that it had not. ADI staff attorney Rose contacted attorney Hawkins who advised her that he recalled appearing at petitioner’s remand/re-sentencing hearing. He reviewed his notes but told her he did not see either a request for an appeal to be filed or any action to be taken related to it. He did not recall petitioner specifically requesting he file an