People v. DanielPeople v. Daniel
Daniel filed a petition for relief under
On appeal, Daniel contends that the order denying the petition must be reversed because the judge who ruled on the petition failed to appoint him counsel and was not the sentencing judge. Although we agree that
I.
FACTUAL AND PROCEDURAL BACKGROUND
Tsegay was killed in 2012, and three years later Daniel was tried and convicted of second degree murder. The jury was not instructed on either felony murder or murder under the natural and probable consequences doctrine. Nevertheless, in April 2019, Daniel filed a petition for resentencing under
Later that month, Judge Morris Jacobson, who had not sentenced Daniel, summarily denied the petition. Daniel did not appear, and counsel was not appointed to represent him. Relying on this court‘s opinion in Daniel‘s direct appeal, the trial court determined that relief under
In June 2019, Daniel appealed from the order denying the petition. His appellate counsel asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. In February 2020, after Daniel submitted a brief on his own behalf raising various issues, we asked his counsel to brief “whether the trial court erred by denying appellant‘s resentencing petition, on the basis of materials outside the petition itself, without first appointing an attorney to represent appellant as he requested.” Over six months later, after the opening brief and respondent‘s brief were filed, we granted Daniel‘s request to file a supplemental opening brief on the issue whether reversal is required because a different judge than the sentencing judge decided the petition, and briefing was completed in September 2020.
DISCUSSION
A. General Legal Standards
“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under
Senate Bill No. 1437 also enacted
”
Daniel claims that the trial court erred by summarily denying his petition under
Earlier this year, our state Supreme Court granted review to decide when the right to counsel arises under
We reached a different conclusion, explaining that, in our view,
The Attorney General filed the respondent‘s brief before we issued Cooper. In addressing the right-to-counsel issue, the Attorney General relies on the reasoning of Lewis and other decisions discerning a two-part review process under
We therefore turn to whether this error requires reversal. Daniel claims that it does. He argues that “the deprivation of his right to counsel is a structural error,” requiring reversal without regard to prejudice. We disagree.
” ‘[T]he total deprivation of the right to counsel at trial’ ” is structural error under both the federal and state Constitutions. (People v. Lightsey (2012) 54 Cal.4th 668, 699 (Lightsey), quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309.) We “presume[] a violation of the right to counsel had a prejudicial effect on the trial ‘where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When [there has been such a denial], the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.’ ” (Lightsey, at pp. 699–700, quoting
Daniel argues that these principles apply to a proceeding under
Even though “neither the federal nor the state Constitution mandates an unconditional right to counsel to pursue a collateral attack on a judgment of conviction,” California decisions recognize that ” ‘if a postconviction petition by an incarcerated defendant “attacking the validity of a judgment
At best, these authorities support an argument that structural error may occur when, after an order to show cause issues, a defendant is denied counsel at a hearing under
In Cooper, we did not decide whether the federal or state constitutional standard for assessing prejudice applies. (See Cooper, supra, 54 Cal.App.5th at p. 123.) Now being satisfied that a petitioner‘s right to counsel under
To determine whether Daniel met this burden, we first address his claim that the trial court improperly relied on materials outside the petition to deny it. Daniel originally raised this claim in the context of arguing that the court substantively erred under
The issue whether a trial court may consider the record of conviction in determining if the petitioner has made a prima facie showing of entitlement to relief under
In his opening brief, Daniel argues that the text and legislative history of
Daniel does not contest that the jury instructions establish he was convicted under a valid theory of murder. Instead, he claims he was prejudiced because he was “effectively denied the opportunity to develop the record on his entitlement to resentencing.” True enough, in some instances the failure to appoint counsel before summarily denying a
Here, however, Daniel has not carried his burden to demonstrate a reasonable probability that “his petition would not have been summarily denied without an evidentiary hearing” had the trial court appointed counsel for him. (Cooper, supra, 54 Cal.App.5th at p. 123.) He posits that at trial “he may have had no incentive to try to present evidence that he was not the actual killer if it would have identified him as an aider and abettor, or supported an argument that he could be found guilty under a natural and probable consequences theory, since it would not have been likely to result in his acquittal under the law at that time,” whereas now he “could present new evidence to support his petition, including evidence that would support a claim he could not be convicted under the law in effect now, which might include information from counsel about different tactical decisions in presenting the case that might have been made were it tried under the current law.” We cannot agree that
C. The Petition‘s Denial by a Judge Other than the Sentencing Judge Was Also Harmless.
Daniel claims that reversal is also required because Judge Jacobson, who was not the sentencing judge, ruled on the petition. Although the record on appeal does not demonstrate that the original judge was unavailable, we conclude that any error was harmless.
The Attorney General does not claim that Santos was wrongly decided. He also concedes that the record before us contains no evidence that Judge Thomas Reardon, “the original sentencing judge[,] was unavailable to rule on
Santos had no occasion to assess the prejudice stemming from a petition‘s assessment by a different judge, because remand was required regardless based on a separate error in the denial of the defendant‘s petition. (Santos, supra, 53 Cal.App.5th at p. 472.) The Court of Appeal did note that “[a]lthough both the petitioner and the prosecution are permitted to present additional evidence beyond that introduced at the time of conviction, a judge who is familiar with the facts, evidence, and law already part of the record is better equipped to rule on a petition than a different judge, unfamiliar with the case, who is reviewing a cold record.” (Id. at p. 474.) Although Daniel generally asserts that “the decision of the petition by the wrong judge . . . [was] prejudicial” (emphasis omitted), he does not identify any possible prejudice resulting from Judge Jacobson‘s unfamiliarity with his case. Since, as discussed above, the jury instructions decisively establish that Daniel is ineligible for relief under
III.
DISPOSITION
The April 30, 2019 order denying Daniel‘s petition for relief is affirmed.
Humes, P.J.
WE CONCUR:
Margulies, J.
Banke, J.