People v. Cheshire CA2/4

INTRODUCTION

In 2017, appellant Andrew Earl Cheshire was convicted of attempted murder. In February 2021, he petitioned for resentencing under Penal Code section 1170.95, and requested the appointment of counsel.1 The trial court summarily denied his petition without appointing counsel, finding both that persons convicted of attempted murder were ineligible for relief under section 1170.95, and that even if they were eligible, appellant was not. On appeal, appellant does not dispute his ineligibility for relief. Instead, he argues that the court committed structural error in failing to appoint counsel, requiring reversal regardless of prejudice. The People agree the court erred in failing to appoint counsel, but contend the error is subject to harmless error analysis. The People further contend the error was harmless because appellant was necessarily convicted on a finding of malice, and not under the natural and probable consequences doctrine or the felony murder rule. We agree with the People and affirm.

STATEMENT OF RELEVANT FACTS

In 2017, appellant was charged by amended information with one count of attempted murder (§§ 187, subd. (a) & 664), among other crimes. The jury…