People v. Nunez CA2/2

DISCUSSION

The Attorney General acknowledges that respondent’s previous arguments in Nunez were the same arguments presented to, and rejected by, the high court in Strong. For this reason, respondent concedes the matter should be remanded for the trial court to issue an order to show cause and conduct an evidentiary hearing wherein relief should be denied if the prosecution proves “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.” (§ 1172.6, subd. (d)(3).) We agree. Upon reconsideration of the cause in light of Strong, supra, 13 Cal.5th 698, and Lewis, supra, 11 Cal.5th 952, we conclude that the superior court erred in failing to appoint counsel and summarily denying appellant’s petition under section 1172.6. We therefore remand the matter for appointment of counsel, the issuance of an order to show cause, and further proceedings in accordance with section 1172.6, subdivision (d).

DISPOSITION

It is ordered that the previous opinion and decision filed in this case on November 3, 2020, is vacated. The matter is remanded for appointment of…