People v. Fernandez CA5

INTRODUCTION

In 2008, a jury convicted petitioner John Gabriel Fernandez of first degree murder (Pen. Code,1 § 187, subd. (a))2, with the special circumstance that petitioner intentionally killed the victim while an active participant in a criminal street gang (§ 190.2, subd. (a)(22)).3 For this offense, petitioner was sentenced to a term of life without the possibility of parole. In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner was ineligible for relief. On appeal, petitioner argues the court erred in failing to appoint counsel and in ruling on the petition without affording both parties an opportunity to file responsive briefing. Although we agree the court erred, we conclude petitioner was not prejudiced by these errors because the record establishes petitioner is ineligible for resentencing as a matter of law. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In petitioner’s direct appeal,4 we briefly summarized the facts underlying petitioner’s offenses as follows:

“[Petitioner] and Brandon Florez were active members of the same criminal street gang. On August 17, 2007,…