People v. Ituarte CA4/2

I.

INTRODUCTION

Defendant and appellant Jorge David Ituarte appeals the trial court’s order 2 summarily denying his Penal Code section 1172.6 (formerly section 1170.95) petition

to recall his murder (§ 187, subd. (a)) conviction and for resentencing. On appeal,

defendant contends the trial court erred in summarily denying his petition without issuing

an order to show cause and holding an evidentiary hearing because the court’s findings

were either contrary to the record or based upon an improper application of the law. He

also asserts his appointed counsel rendered ineffective assistance by failing to object to

the trial court’s findings. He requests the matter be remanded for further proceedings.

The People agree the matter should be remanded for an evidentiary hearing because the

record of conviction does not establish defendant was ineligible for resentencing as a

matter of law. We agree with the parties and remand the case with directions for the

superior court to vacate its order denying the petition, issue an order to show cause and

conduct further proceedings in accordance with section 1172.6, subdivision…