People v. Wilson CA5

INTRODUCTION

Petitioner Joseph Allen Wilson petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for first degree murder. The superior court denied the petition at the prima facie stage without appointing counsel or holding a hearing. Based on the factual background as stated in our opinion in petitioner’s direct appeal (see People v. Wilson (Feb. 4, 1998, F025854) [nonpub. opn.] (Wilson)), the court determined petitioner aided and abetted in the murder with intent to kill, a disqualifying factor pursuant to sections 1172.6, subdivision (a)(3) and 189, subdivision (e)(2). On appeal, petitioner argues the superior court prejudicially erred in denying the petition without appointing counsel, issuing an order to show cause, or holding an evidentiary hearing. We agree the court erred in denying the petition without appointing counsel. However, we conclude the error was harmless because the jury’s special circumstance finding establishes petitioner aided and abetted in the murder with intent to kill. (§ 190.2, subd. (a)(10).) Accordingly, petitioner is ineligible for resentencing as a matter of law and…