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Name: People v. Foley (2023) 97 Cal.App.5th 653
Case #: C097140
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/29/2023

Denial of Penal Code section 1172.6 resentencing petition reversed where defendant was denied his constitutional right to conflict-free representation. Defendant Foley and codefendant Gladden were tried together and convicted of murder under a felony-murder theory. Neither man was the actual killer. In 2019, both petitioned for resentencing under section 1172.6. The trial court issued an OSC. At the consolidated evidentiary hearing, the same attorney represented both Foley and Gladden. Counsel argued that neither defendant nor Gladden were major participants who acted with reckless indifference to human life, but acknowledged that Gladden “certainly [had] the stronger petition.” The court granted Gladden’s petition only. Foley appealed. Held: Reversed and remanded for a new evidentiary hearing. The Sixth Amendment right to counsel applies in the context of a section 1172.6 resentencing, at least where the trial court issues an OSC and holds an evidentiary hearing. To establish a violation of this right, defendant must show (1) that counsel labored under an actual conflict of interest that adversely affected counsel’s performance, and (2) absent counsel’s deficiencies arising from the conflict, it is reasonably probably the result of the proceeding would have been different. At a section 1172.6 evidentiary hearing, counsel must be free to stress particular factors that favor her client even where those same factors might not apply to a codefendant. Where counsel represents more than one defendant in seeking relief, counsel is necessarily inhibited in making such arguments, and cannot simultaneously argue that each defendant is “most” deserving of having his murder conviction vacated. Here, each factor that counsel argued in favor of Gladden that did not also apply to defendant put her argument for Gladden at odds with defendant’s interests. Prejudice is presumed because defendant demonstrated that counsel actively represented conflicting interests and the conflict adversely affected counsel’s performance.