DISCUSSION

1. Senate Bill No. 1437, Senate Bill 775 and the Section 1170.95 Petition Procedure Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437) substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly narrowing the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); see Lewis, supra, 11 Cal.5th at p. 957.) It also authorized, through new section 1170.95, an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not now be convicted of murder because of Senate Bill 1437’s changes to the definitions of the crime. (See Lewis, at p. 957; Gentile, at p. 843.) As amended by Senate Bill 775, effective January 1, 2022, these ameliorative changes to the law now expressly apply to attempted murder and voluntary manslaughter. If the section 1170.95 petition contains all the required information, including a declaration by the petitioner that he or she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel to represent the petitioner, if requested (§ 1170.95, subd. (b)(3)),2 and direct the prosecutor to file a response to the petition, permit the petitioner to file a reply and

2 Prior to enactment of Senate Bill 775 the requirement to appoint counsel was set forth in subdivision (c) of section 1170.95.

4 determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.) If the section 1170.95, subdivision (c), prima facie showing has been made, the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder, attempted murder or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the prosecutor has the burden of proving, “beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The court may consider evidence previously admitted at any prior hearing or trial “that is admissible under current law,” including testimony and stipulated evidence. (Ibid.) The petitioner and the prosecutor may also offer new or additional evidence. (Ibid.) 2. The Error in Denying Herrera’s Petition Without Appointing Counsel Was Harmless Under Lewis, supra, 11 Cal.5th 952, decided two months after our original decision affirming the order summarily denying Herrera’s petition for resentencing, once a petitioner files a facially sufficient petition under section 1170.95 and requests appointment of counsel, the superior court must appoint counsel before performing any prima facie review under section 1170.95, subdivision (c). (Lewis, at p. 963 [“petitioners who file a complying petition requesting counsel are to receive counsel upon filing of a compliant petition”].) And among other changes, Senate Bill 775 amended section 1170.95, subdivision (a), to expressly permit relief for petitioners convicted of “attempted

5 murder under the natural and probable consequences doctrine” if they could not now be convicted of attempted murder because of changes to sections 188 and 189 effected by Senate Bill 1437. In light of Lewis and Senate Bill 775, it was error to summarily deny Herrera’s petition for resentencing relief. However, a remand is not necessary in this case. Although the superior court may not engage in judicial factfinding or make credibility decisions prior to issuing an order to show cause, under Lewis, supra, 11 Cal.5th at page 971, “[t]he record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.” The Lewis Court also held a superior court’s failure to appoint counsel to represent a petitioner when assessing whether he or she has made a prima facie showing of entitlement to relief pursuant to section 1170.95, subdivision (c), is state law error only, reviewable for prejudice under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, at pp. 957, 973-974.) Specifically, “a petitioner ‘whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.”’” (Id. at p. 974.) As discussed, the record of conviction, including the jury’s finding that Herrera had personally and intentionally discharged a firearm proximately causing great bodily injury during the attempted murder, established that Herrera, acting alone, robbed Mendez and then shot him when Mendez said he had no more money. Indeed, in his supplemental brief following the Supreme

6 Court’s transfer order, Herrera acknowledges he “robbed and shot the victim.” As the sole perpetrator of the two offenses, Herrera is ineligible for resentencing relief under section 1170.95 as a matter of law because he remains guilty of attempted murder under California law as amended by the changes to sections 188 and 189 made by Senate Bill 1437 and Senate Bill 775. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864 [petitioner is ineligible for relief as a matter of law if the record of conviction establishes he or she was not convicted under a theory of liability affected by Senate Bill 1437’s amendments to the law of murder].) Because there is no reasonable probability Herrera would obtain a more favorable result if the matter were remanded and counsel appointed and given the opportunity to file a memorandum supporting the petition, the court’s errors in denying Herrera’s petition were harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The order denying Herrera’s petition for resentencing is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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