People v. Maldonado CA2/6

DISCUSSION

Maldonado contends the trial court erred when it summarily denied his section 1170.95 resentencing petition without appointing counsel. Having reconsidered the matter, we

2 The trial court deemed prosecutors’ response to Maldonado’s petition a “discretionary filing, with no procedural significance under the statutory scheme, as it included as an attachment [our] opinion on direct appeal.”

3 agree. (Lewis, supra, 11 Cal.5th at pp. 961-970.) But the error was harmless. If a trial court erroneously denies a section 1170.95 resentencing petition without appointing counsel, the error is prejudicial and requires reversal only if the petitioner shows a reasonable probability that the “‘“petition would not have been summarily denied without an evidentiary hearing”’” had the court appointed counsel. (Lewis, supra, 11 Cal.5th at p. 974; see People v. Watson (1956) 46 Cal.2d 818, 836.) Here, the jury found true a torture special circumstance allegation, a finding Maldonado did not challenge on direct appeal. That finding— which is now law of the case (Conservatorship of Edde (2009) 173 Cal.App.4th 883, 889)—required the jury to determine that Maldonado acted with the intent to…