Error and/or relief
The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.
First Holding:
If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested.
Authority:
PEN 1172.6(b)(1)(A), (3)
People v. Lewis (2021) 11 Cal.5th 952, 962-963
Second Holding:
Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition.
Authority:
People v. Watson (1956) 46 Cal.2d 818
People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing]
Third Holding:
A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.
Authority:
People v. Lewis (2021) 11 Cal.5th 952, 972
People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]
People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act]