People v. Pereles CA6, H049218

In 1997 Pereles was convicted of first-degree murder with a felony-murder special circumstance (§ 190.2(a)(17)) and a firearm arming enhancement; sentenced to LWOP plus two years.
Facts: Pereles and co-defendant Larry Paul committed robberies; Pereles admitted being present during the robbery of David Liu and stated Paul shot Liu; Pereles said he expected only a beating and did not receive proceeds.
Pereles later sought habeas relief arguing Banks/Clark would preclude the special-circumstance finding; the superior court denied the petition after applying Banks and Clark factors and finding Pereles a major participant who acted with reckless indifference.
In 2021 Pereles filed a §1170.95 petition (requesting counsel) to vacate felony-murder liability under SB 1437; the superior court denied it without appointing counsel, relying on the record and the prior habeas ruling.
The Court of Appeal held the trial court erred by not appointing counsel (per People v. Lewis) but found the error harmless because the earlier Banks/Clark sufficiency review foreclosed §1170.95 relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court erred by denying a facially sufficient §1170.95 petition without appointing counsel	People conceded appointment was required but argued the error was harmless	Pereles argued the court should have appointed counsel before reviewing the record	Court: Failure to appoint counsel was error under Lewis but harmless here
Whether the preexisting felony-murder special-circumstance finding (and the habeas review) precludes §1170.95 relief	People: The previously upheld special-circumstance finding shows Pereles is ineligible for §1170.95 relief	Pereles: Habeas denial was effectively "summary" and cannot preclude §1170.95 relief because burdens differ	Court: Habeas proceeding applied Banks/Clark substantial-evidence review; that review forecloses a prima facie showing and bars §1170.95 relief
Whether Pereles was prejudiced by the counsel-appointment error (i.e., reversible)	People: No reasonable probability of a different outcome because the record conclusively refutes eligibility for relief	Pereles: Appointment could have produced briefing or facts creating a prima facie case	Court: No prejudice; error harmless because record and prior Banks/Clark sufficiency finding defeat §1170.95 claim

People v. Banks, 61 Cal.4th 788 (2015) (identifies multi-factor test for when an accomplice qualifies as a "major participant")
People v. Clark, 63 Cal.4th 522 (2016) (clarifies subjective and objective elements of reckless indifference and lists relevant factors)
People v. Lewis, 11 Cal.5th 952 (2021) (§1170.95 requires appointment of counsel upon filing a facially sufficient petition and briefing before prima facie determination)
People v. Pineda, 66 Cal.App.5th 792 (2021) (discusses interplay of Banks/Clark review and §1170.95 eligibility)
People v. Secrease, 63 Cal.App.5th 231 (2021) (holds a Banks/Clark sufficiency analysis may be required at the §1170.95 prima facie stage)