Error and/or relief
The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.
First Holding:
Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.
Authority:
PEN 1172.6
Second Holding:
Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives.
Authority:
PEN 1172.6
Third Holding:
We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing.
Authority:
People v. Harden (2022) 81 Cal.App.5th 45, 52
Fourth Holding:
Since the decision to appoint counsel is not discretionary, we review that without deference as well.
Authority:
Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988