People v. Chavarria CA6

Discussion A. No Prima Facie Showing of Eligibility to Petition for Recall of Sentence Chavarria frames the question on appeal as “whether a petitioner who makes a prima facie showing is entitled to the assistance of counsel in prosecuting his resentencing petition.” We first point out that Chavarria has not made a prima facie showing that he was entitled to possible relief pursuant to section 1170.126. Subdivision (b) of section 1170.126 provides in part: “Any person serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] upon conviction, whether by trial or plea, of a felony or felonies that are not defined as

2 serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence . . . .”2 (Italics added.) The enhancement under former section 12022.7, subdivision (d), that attached to two of the felony convictions for which Chavarria is now serving a 25-years-to-life term under the Three Strikes law rendered those felony convictions serious and violent. (See § 667.5, subd. (c)(8) [“Any felony in which the defendant inflicts great bodily injury on any person…