People v. Marquez CA5

INTRODUCTION

In 2019, appellant pleaded no contest to voluntary manslaughter and related enhancements in lieu of going to trial for murder. Four years later, he filed a Penal Code section 1172.61 petition for resentencing. The trial court denied the petition, finding appellant is ineligible for resentencing because he was convicted after Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective. On appeal, appellant contends the trial court erred in denying his resentencing petition based on the date of his conviction. We conclude the trial court did not err because appellant was convicted under the current law. Accordingly, appellant cannot show that he “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) We also find the trial court’s failure to appoint counsel was harmless error. We affirm.

BACKGROUND

In 2016, the Kern County District Attorney’s Office filed an information charging appellant with first degree murder (§§ 187, subd. (a), 189, subd. (a); count 1) with gang- murder special circumstances (§ 190.2, subd. (a)(22)), drive-by-murder special circumstances…