People v. Olivarez CA3

DISCUSSION

Defendant contends the trial court erred in summarily denying his resentencing petition without appointing counsel or allowing briefing from both parties. After the close of briefing in this case, on July 26, 2021, our Supreme Court decided People v. Lewis (2021) 11 Cal.5th 952 (Lewis), holding that if a defendant files a facially sufficient section 1170.95 petition and requests appointment of counsel, the trial court must appoint counsel and entertain further briefing. (Lewis, at pp. 963, 966, 970.) Thus, the failure to appoint counsel was error. However, as we will explain, the error was harmless because defendant is ineligible for relief as a matter of law. On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). Senate Bill No. 1437 was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,…