People v. Henry CA1/1

BACKGROUND

The resentencing petition was a preprinted form on which Henry checked boxes alleging that he met the requirements of former section 1170.95,2 subdivision (a) and requesting the appointment of counsel. Upon receiving the petition, the superior court appointed counsel for Henry and sought the prosecutor’s response. The prosecutor’s first response averred that Henry had made the requisite prima facie showing under section 1172.6, subdivision (c). But in a later, supplemental response, the prosecutor withdrew that concession in light of People v. Mares (2024) 99 Cal.App.5th 1158 (Mares), review granted May 1, 2024, S284232 (rejecting a defendant’s contention that the superior court erred in relying on a preliminary hearing transcript in the prima facie stage of § 1172.6 proceedings). According to the supplemental response, the prosecutor had proceeded at the preliminary hearing on a theory that Henry “was the actual killer through testimony of live witnesses and video evidence,” and no evidence undercut that theory. Moreover, the supplemental response noted that Henry’s counsel at the preliminary hearing had argued that Henry should only “be held to answer . . . for…