People v. Simmons CA5

INTRODUCTION

Petitioner Lawrence Simmons 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 (§ 187). The superior court denied the petitions at the prima facie stage, without appointing counsel, on the ground that petitioner was a major participant in the underlying felony and acted with reckless indifference to human life. On appeal, petitioner argues the superior court erred in failing to appoint counsel and in denying the petitions at the prima facie stage. He contends the jury’s robbery- murder special circumstance, which required the jury to find he was a major participant in the underlying felony and acted with reckless indifference to human life (§ 190.2, subds. (a)(17)(A), (d)), does not preclude relief because it was made prior to our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In our original opinion we held the jury’s robbery-murder special circumstance rendered petitioner ineligible for resentencing as a matter of law. Accordingly, we held any error in failing to appoint counsel…