People v. Guice CA5

INTRODUCTION

Petitioner Paul Andrew Guice petitioned the trial court pursuant to Penal Code1 section 1170.95 for resentencing on his conviction for first degree murder. The trial court held an evidentiary hearing and denied the petition on the ground petitioner was the actual killer and therefore ineligible for relief. On appeal, petitioner contends the trial court violated his statutory and constitutional right to be present at the section 1170.95 evidentiary hearing and his counsel provided constitutionally ineffective assistance when he conceded, at the hearing, that petitioner was ineligible for resentencing. The People argue petitioner forfeited his contentions regarding his right to be present and, in any event, his contentions lack merit and his absence was harmless. The People additionally contend petitioner failed to demonstrate ineffective assistance of counsel. We conclude petitioner has a constitutional right to be personally present at the section 1170.95 evidentiary hearing on his petition for resentencing, he did not forfeit that right by his counsel’s failure to object, and the violation of that right was not harmless beyond a reasonable doubt. We therefore…