People v. Rubio CA5

INTRODUCTION

In 1990, a jury convicted petitioner Jose Luis Rubio of the first degree murder of Jose Morales Araiza (Pen. Code,1 § 187, subd. (a)), with a special circumstance that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)), and an enhancement for personal use of a deadly and dangerous weapon, to wit, a tire iron (§ 12022, subd. (b)). The trial court sentenced petitioner to a term of life without the possibility of parole, plus one year. In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition on the ground petitioner was the actual killer and a major participant in the underlying felony who acted with reckless indifference to human life, disqualifying factors pursuant to section 1170.95, subdivision (a)(3). On appeal, petitioner argues the trial court erred in denying the petition without appointing counsel, providing an opportunity for briefing, and holding an evidentiary hearing. We conclude the court erred in failing to appoint counsel and allow for briefing, but the error was harmless because the record of conviction establishes petitioner is…