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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…

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Name: People v. Hurtado (2023) 89 Cal.App.5th 887
Case #: B319381
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 03/27/2023

Where appellant was the lone actor convicted by a jury of attempted murder, the summary denial of his petition for resentencing under Penal Code section 1172.6 was “harmless error.” Hurtado was convicted by jury of attempted murder, with a personal use firearm enhancement, among other crimes. In 2022, he filed a petition for resentencing under section 1172.6. The trial court summarily denied his petition. Held: Affirmed. Here, the trial court did not comply with the statutory requirements under section 1172.6, as it did not appoint counsel, set a briefing schedule, or hold a hearing before denying the petition. However, Hurtado…

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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…

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