People v. Berry CA3
C091103
| Cal. Ct. App. | Jun 30, 2021Background
- Donald Joseph Berry was convicted by a jury of second‑degree murder, corporal injury to a cohabitant, and assault with a firearm for the 2007 killing of Anona Wine; jury found personal firearm use and Berry was sentenced to an aggregate 25 years to life.
- On direct appeal this court affirmed, concluding any felony‑murder instruction error was harmless because the record supported implied malice and that Berry was the actual killer.
- After Senate Bill No. 1437 created Penal Code § 1170.95, Berry filed a resentencing petition asserting ineligibility under the new felony‑murder and natural‑and‑probable‑consequences limits and requested appointed counsel.
- The trial court appointed the public defender; the People filed a response arguing Berry was ineligible based on the record; appointed counsel did not file briefing; Berry filed a pro per traverse.
- The trial court denied the § 1170.95 petition for failure to make a prima facie showing; Berry appealed, arguing the court failed to ensure appointed counsel meaningfully participated and that this violated his rights to counsel and due process.
- The Court of Appeal affirmed, holding any procedural or counsel‑related error was harmless beyond a reasonable doubt because the prior record conclusively showed Berry acted with implied malice and was the actual killer, and noting no constitutional right to counsel exists at this preliminary stage absent a prima facie showing.
Issues
| Issue | People’s Argument | Berry’s Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying the § 1170.95 petition without ensuring appointed counsel meaningfully participated | No reversible error; record shows ineligibility so additional counsel briefing would not change outcome | Court violated § 1170.95 mandate and failed to ensure counsel participated, resulting in prejudicial error | No reversible error; any procedural or counsel non‑participation was harmless beyond a reasonable doubt because record shows implied malice/actual killing |
| Whether denying the petition without effective counsel deprived Berry of the constitutional right to counsel | No constitutional right to appointed counsel in state postconviction proceedings at this stage; appointment is contingent on prima facie showing | Denial without counsel violated Berry’s Sixth Amendment and due process rights | No; no constitutional right to counsel for § 1170.95 initial review; appointment occurs only after prima facie showing |
| Whether absence of effective counsel is structural error requiring automatic reversal | Absent here; even if error, it is not structural and is subject to harmless‑error analysis | Failure to ensure counsel’s meaningful participation is structural error that mandates reversal | Not structural; any error is harmless because the record conclusively establishes ineligibility |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (1967) (harmless‑beyond‑a‑reasonable‑doubt standard)
- Coleman v. Thompson, 501 U.S. 722 (1991) (no constitutional right to counsel in state postconviction proceedings)
- In re Clark, 5 Cal.4th 750 (1993) (due process requires counsel only after prima facie showing leading to order to show cause)
- In re Jesusa V., 32 Cal.4th 588 (2004) (due process claim rejected where court can say no other result was possible)
- People v. Lewis, 43 Cal.App.5th 1128 (2020) (holds trial courts may review record before appointing counsel; issue granted review)
- People v. Cooper, 54 Cal.App.5th 106 (2020) (disagrees with Lewis on pre‑appointment record review)
- Briggs v. Brown, 3 Cal.5th 808 (2017) (addresses statutory changes affecting appointment‑of‑counsel analysis)