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Name: People v. Simmons
Case #: F079610
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/16/2021

Special circumstance finding made before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, rendered the trial court’s failure to appoint counsel or follow the procedures outlined in Penal Code section 1170.95, subdivision (c) harmless. In 1995, Simmons was convicted of first degree felony murder, with the special circumstance that he was engaged in the commission and attempted commission of a robbery (Pen. Code, §§ 190.2, subd. (a)(17), 211), and sentenced to LWOP. In 2019, Simmons filed petitions for resentencing under section 1170.95, which were denied on the ground he was a major participant who acted with reckless indifference to human life. He appealed. Held: Affirmed. To demonstrate prejudice from the denial of a section 1170.95 petition before an order to show cause issues, the petitioner bears the burden of showing it is reasonably probable that if he or she had been afforded assistance of counsel his or her petition would not have been summarily denied without an evidentiary hearing. (People v. Daniel (2020) 57 Cal.App.5th 666, 672, review granted 2/24/2021 (S266336).) Here, the court agreed with the line of cases holding that a special circumstance finding made prior to Banks and Clark precludes relief as a matter of law. Rather than stating a new rule of law, Banks and Clark clarified principles that had long been in existence at the time Simmons was convicted. Absent a determination on direct appeal or in habeas that evidence was insufficient to support the jury findings, there is no basis to conclude Simmons’s jury applied different standards than those described in Banks and Clark. Therefore, any error in failing to appoint counsel or follow the procedures outlined in section 1170.95, subdivision (c) was harmless because petitioner is ineligible for resentencing as a matter of law. [Editor’s Note: As the court noted, the issue of whether a felony-murder special circumstance finding made before Banks and Clark precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95 is pending in the California Supreme Court in People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted 3/10/2021 (S266606).]