People v. Perez CA5

INTRODUCTION

Petitioner Guy Perez 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 petition at the prima facie stage, without appointing counsel, on the ground petitioner was a major participant in the underlying felony who acted with reckless indifference to human life. On appeal, petitioner argues the superior court erred in failing to appoint counsel and ultimately in denying the petition at the prima facie stage. He argues the court improperly resolved disputed factual issues. He further contends the jury’s true finding on a kidnapping 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), (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 special circumstance finding rendered petitioner ineligible for resentencing as a matter of…