Opinion
B304671
05-14-2021
THE PEOPLE, Plaintiff and Respondent, v. DEONTAE DAVEION DEAN, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA408344) APPEAL from an order of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2014 a jury convicted Deontae Dean of first degree murder and found true the allegation he used a deadly or dangerous weapon. The trial court sentenced Dean to a prison term of 26 years to life, and we affirmed the judgment. (People v. Dean (Nov. 10, 2016, B258746) [nonpub. opn.] (Dean I).)
In 2019 Dean filed a petition under Penal Code section 1170.95, which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. The superior court issued an order to show cause, held an evidentiary hearing, and denied the petition. Dean appeals, contending that the superior court applied an incorrect standard of proof and that his counsel provided ineffective assistance in the section 1170.95 proceedings.
Statutory references are to the Penal Code.
We conclude that, although the superior court may have applied the wrong standard of proof, any error was harmless because the record of conviction established as a matter of law that Dean is ineligible for relief under section 1170.95 and Dean has failed to demonstrate his attorney provided ineffective assistance. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Dean of First Degree Murder
In 2012 Dean and Mike Lavatai attacked Carlos Renteria outside Renteria's home. Lavatai came out from hiding and hit Renteria on the back of the head, while Dean used a metal pipe to beat Renteria. As Dean continued to hit Renteria, Lavatai stabbed Renteria in the chest, killing him. (Dean I, supra, B258746.)
The People charged Dean with murder and alleged that he personally used a deadly or dangerous weapon, within the meaning of section 12022, subdivision (b)(1), and that he committed the murder for financial gain and by lying in wait, within the meaning of section 190.2, subdivision (a)(1) and (15). The People proceeded on two theories of first degree murder: (1) willful, deliberate, and premediated murder; and (2) murder by lying in wait. The trial court instructed the jury with CALCRIM No. 520 on the elements of murder and express and implied malice; with CALCRIM No. 521 on willful, deliberate, and premediated murder and murder by lying in wait; and with CALCRIM No. 403 on the natural and probable consequences doctrine, including that, if the jurors found Dean guilty of murder under that theory, the crime would be second degree murder. The trial court also instructed the jury with CALCRIM No. 728 on the special circumstance of murder by means of lying in wait.
The jury found Dean guilty of first degree murder and found true the allegation he personally used a deadly or dangerous weapon. The jury found not true the special circumstance allegations that Dean committed the murder for financial gain and by lying in wait. The trial court sentenced Dean to a prison term of 26 years to life (25 years for the first degree murder conviction, plus one year for the weapon enhancement). (Dean I, supra, B258746.)
B. Dean I
Dean appealed, contending the trial court erred in instructing the jury on the law of self-defense and in responding to a jury question about the difference between the substantive crime of murder by lying in wait and the special circumstance allegation of murder by means of lying in wait. Dean also argued that the prosecutor committed misconduct by misstating the law and that his trial counsel provided ineffective assistance by failing to object to the claimed instructional error and prosecutorial misconduct. (Dean I, supra, B258746.)
We held that Dean forfeited his arguments because he did not object to the purported instructional errors or misconduct and that he had not demonstrated his trial counsel provided ineffective assistance. In particular, we held counsel's failure to object to the court's instructions did not constitute deficient performance because the trial court's instructions were not erroneous. We also held that counsel's failure to object to the prosecutor's alleged misstatements of the law did not fall below an objective standard of reasonable representation because the prosecutor did not misstate the law on aiding and abetting and that, although the prosecutor did misstate the law on lying-in-wait first degree murder by stating it did not require a finding of malice, Dean had not shown his trial counsel's failure to object to the argument caused any prejudice. We concluded that, "[t]o find Dean guilty of first degree murder by lying in wait, the jury would have to find that he acted with at least implied malice" and that "the record [was] replete with evidence" to support such a finding. We explained the evidence "readily satisfied the first two elements of implied malice because a reasonable juror would necessarily conclude that Dean engaged in intentional acts, the natural and probable consequences of which were dangerous to human life." We also concluded "[t]he circumstances of the attack . . . demonstrate overwhelmingly that Dean knew his acts were highly dangerous and that he acted with conscious disregard for life." (Dean I, supra, B258746.)
C. Dean Files a Petition Under Section 1170 .95
In March 2019 Dean, representing himself, filed a petition under section 1170.95. Checking boxes on a form petition, Dean alleged that he had been convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine. The superior court appointed counsel to represent Dean, and the People filed an opposition to the petition, arguing Dean was ineligible for resentencing under section 1170.95 because the jury did not find him guilty of murder based on the felony murder rule or the natural and probable consequences doctrine. The People argued, among other things, that the trial court had instructed the jury it could only convict Dean of second degree murder under the natural and probable consequences doctrine, but that the jury had convicted Dean of first degree murder. The court issued an order to show cause.
At the hearing on the order to show cause, the People again argued the jury did not convict Dean of murder under the natural and probable consequences doctrine because the trial court instructed the jurors that, if they found Dean acted as an aider and abettor under the natural and probable consequences theory, they could only convict Dean of second degree murder. The People contended the jury "clearly . . . did not rely on the natural and probable consequences theory" because it convicted Dean of first degree murder.
Referring to the direct aiding and abetting and lying-in-wait theories, the superior court observed that the jurors "had to find malice under either theory" and that those theories were still valid. The court stated that, at the order to show cause stage of the proceedings, the issue the court needed to decide was: "Is the evidence sufficient that a jury could convict [Dean]?" The court rejected counsel for Dean's argument the prosecution had to prove beyond a reasonable doubt Dean was ineligible. The court stated that section 1170.95 did not say the petitioner "was or wasn't" convicted of murder under a still-valid theory, but said "'couldn't be,'" and that "'was' and 'couldn't' are two different concepts."
In its written decision denying the petition, the superior court stated: "The court hereby denies the petition because it is clear beyond a reasonable doubt that (1) although [Dean] was convicted as a direct aider and abettor on the first degree murder charge, the evidence supporting that conviction makes it clear beyond a reasonable doubt that [t]he jury found him guilty of malice murder and (2) [Dean] was not convicted under a theory of felony-murder of any degree or (3) under a theory of natural and probable consequences because that doctrine could only have resulted in a second degree murder conviction." The court observed the instructions on the natural and probable consequences theory "were limited to second degree murder because this case was tried after the decision in People v. Chiu (2014) 59 Cal.4th 155," where the Supreme Court held that "a defendant cannot be convicted of first degree premediated murder under the natural and probable consequences doctrine." (Id. at p. 167.) The superior court concluded that Dean "was properly convicted of first degree murder with malice" and that therefore "he still could be convicted of first degree murder under the current law." Dean timely appealed.
DISCUSSION
A. To the Extent the Superior Court Applied the Wrong Standard at the Evidentiary Hearing, the Error Was Harmless
1. Senate Bill No. 1437 and the Section 1170 .95 Petition Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4), effective January 1, 2019, eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and significantly limited the felony murder exception to the malice requirement for murder. (See People v. Rodriguez (2020) 58 Cal.App.5th 227, 236 (Rodriguez), review granted Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th 1077, 1080.) Senate Bill No. 1437 also authorized, through new section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the court to vacate the conviction and request resentencing on any remaining counts if he or she could not have been convicted of murder because of Senate Bill No. 1437's changes to the law. (See Gentile, at p. 843.)
If a petition under section 1170.95 contains all the required information, including a declaration by the petitioner that he or she was convicted of murder and is eligible for relief (§ 1170.95, subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a process for the court to determine whether to issue an order to show cause and hold an evidentiary hearing to consider whether to vacate the murder conviction and resentence the petitioner on any remaining counts. The superior court proceeds under subdivision (c) in two steps, "one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo), review granted Mar. 18, 2020, S260493; accord, People v. Soto (2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23, 2020, S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118 [section 1170.95, subdivision (c), has only one prima facie review before the court issues an order to show cause], review granted Nov. 10, 2020, S264684.) As we explained in Verdugo, because a "petitioner is not eligible for relief under section 1170.95 unless he or she was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the court must at least examine the complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment. Based on a threshold review of these documents, the court can dismiss any petition filed by an individual who was not actually convicted of first or second degree murder." (Verdugo, at pp. 329-330.)
Although not an issue in this appeal, we also held in Verdugo that a petitioner is entitled to appointment of counsel only if the superior court does not determine the petitioner is ineligible for relief as a matter of law at the first prima facie review under section 1170.95, subdivision (c). (Verdugo, supra, 44 Cal.App.5th at p. 332, review granted; accord, People v. York (2020) 54 Cal.App.5th 250, 262-263, review granted Nov. 18, 2020, S264954; People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020, S260598; but see People v. Cooper, supra, 54 Cal.App.5th at p. 113 , review granted.)
If the court issues an order to show cause, the court must hold a hearing, where the prosecution has the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(1), (3); see Rodriguez, supra, 58 Cal.App.5th at p. 237, review granted.) The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence. (See Rodriguez, at p. 237; People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, S263219; People v. Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481.) "The record of conviction includes the reviewing court's opinion." (People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020, S260598.)
2. Any Error by the Superior Court in Applying an Incorrect Standard at the Evidentiary Hearing Did Not Prejudice Dean
As discussed, "[a]t the hearing stage, the prosecutor has the burden 'to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.' [Citation.] The statute does not affirmatively define the term 'ineligible.' Rather, it sets forth three conditions that must be satisfied by a petitioner seeking relief. [Citation.] Therefore, the prosecutor's burden at the hearing stage is to prove that at least one of the three conditions is not satisfied." (People v. Lopez (2020) 56 Cal.App.5th 936, 947, review granted Feb. 10, 2021, S265974.) Dean argues that, in order for the People to prove he has not satisfied the third condition of section 1170.95, subdivision (a) (that the "petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019"), the prosecutor must "establish beyond a reasonable doubt that [Dean] is guilty of murder under one of the theories of murder that remain valid after the enactment of Senate Bill 1437." Citing People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309, the People argue that section 1170.95, subdivision (d)(3), requires the prosecution to prove "'beyond a reasonable doubt that [Dean] could still have been convicted of murder under the new law—in other words, that a reasonable jury could find the defendant guilty of murder' under a currently valid theory of murder." The People assert the correct standard for the superior court to apply at the evidentiary hearing "mirrors the familiar substantial evidence test."
We rejected the People's argument in Rodriguez, supra, 58 Cal.App.5th 227, review granted. There, we held "it is the court's responsibility to act as independent fact finder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 and is thus ineligible for resentencing under section 1170.95, subdivision (d)(3)." (Rodriguez, at pp. 241, 243-244.) We held in Rodriguez that, contrary to the People's argument there and here, "section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner's ineligibility for relief under that statute." (Rodriguez, at pp. 230-231; see People v. Clements (2021) 60 Cal.App.5th 597, 615 ["the plain text of the statute requires the trial judge to sit as a fact finder, not as a quasi-appellate court"], review granted Apr. 28, 2021, S267624; People v. Lopez, supra, 56 Cal.App.5th at p. 951 ["to establish a petitioner's ineligibility for section 1170.95 relief for failure to satisfy the third condition, the prosecutor must prove beyond a reasonable doubt the elements of first or second degree murder under the current law"], review granted; but see People v. Duke, supra, 55 Cal.App.5th at p. 123 [applying the substantial evidence standard], review granted.)
The Supreme Court granted review in People v. Duke, supra, 55 Cal.App.5th 113, review granted January 13, 2021, S265309, to decide whether the People can meet their burden of establishing a petitioner's ineligibility for resentencing under section 1170.95, subdivision (d)(3), by presenting substantial evidence of the petitioner's liability for murder under sections 188 and 189 as amended by Senate Bill No. 1437.
The record reflects that, at the hearing on the order to show cause, the superior court incorrectly applied the sufficiency of the evidence standard (or at least made statements suggesting it was applying that (incorrect) standard). (See Rodriguez, supra, 58 Cal.App.5th at p. 242 [rejecting an "appellate-type review of the sufficiency of the evidence of the petitioner's guilt on a still-viable theory"], review granted.) The court also commented that, if "the case was tried over again under the present law," it "seems . . . pretty clear" that Dean "could be convicted of murder." The superior court's written decision suggests the court applied a standard similar to the independent factfinder test, but also stated that the evidence showed beyond a reasonable doubt the jury (i.e., not the superior court) found Dean "guilty of malice murder" and that Dean "was properly convicted of first degree murder with malice."
Any error, however, was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). The requirement that the People must prove beyond a reasonable doubt the petitioner is ineligible under section 1170.95 is statutory. Contrary to Dean's argument, any error by the superior court regarding the standard of proof did not violate Dean's "federal constitutional right to due process." (See People v. Lopez, supra, 56 Cal.App.5th at p. 958 [the "'proceedings authorized by [section 1170.95] are not constitutionally compelled'"], review granted; People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115 ["'the retroactive relief . . . afforded by Senate Bill 1437 . . . constituted an act of lenity that does not implicate defendants' Sixth Amendment rights'"], review granted Nov. 13, 2019, S258175.) Because any error committed by the superior court in applying the wrong legal standard implicated state law only, Dean must show under Watson it is reasonably probable he would have achieved a more favorable result had the court applied the correct standard. (See People v. Epps (2001) 25 Cal.4th 19, 29 ["the Watson test for harmless error applies" to the denial of a right that "is purely a creature of state statutory law"]; People v. Johnson (2016) 1 Cal.App.5th 953, 968 [applying the Watson test to conclude the trial court's error in restricting the type of evidence a petitioner may use to establish eligibility for resentencing under Proposition 47 was harmless].)
Dean cites Estelle v. McGuire (1991) 502 U.S. 62 [112 S.Ct. 475, 116 L.Ed.2d 385], where the Supreme Court held a federal court may reverse a conviction on habeas only if an erroneous instruction "'so infected the entire trial that the resulting conviction violates due process.'" (Id. at pp. 70-72.) That case has no relevance here, and actually undermines Dean's position. (See id. at p. 73 ["'Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.'"].) In Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175], also cited by Dean, the Supreme Court held that, where "a convicted defendant is entitled to have his punishment fixed by the jury," a jury instruction that specified the term of imprisonment "deprived the petitioner of his liberty without due process of law." (Id. at pp. 345-347.) Section 1170.95 does not give statutorily ineligible petitioners a liberty interest. (See, e.g., People v. Tarkington, supra, 49 Cal.App.5th at p. 908 [because the defendant "is categorically ineligible for relief under section 1170.95 . . . it follows . . . that he could have had no liberty interest in the appointment of counsel"], review granted.)
Here, because Dean is ineligible as a matter of law, even if the superior court erred in failing to apply the beyond-a-reasonable-doubt standard of proof required by section 1170.95, subdivision (d)(3), it is not reasonably probable Dean would have obtained a more favorable outcome. Conviction under the felony murder rule or based on the natural and probable consequences doctrine is a prerequisite for eligibility under section 1170.95. (See People v. Daniel (2020) 57 Cal.App.5th 666, 677 [defendant was "not '[a] person convicted of felony murder or murder under a natural and probable consequences theory,' and he is therefore ineligible for relief as a matter of law"], review granted Feb. 24, 2021, S266336; People v. Soto, supra, 51 Cal.App.5th at p. 1056 ["potential relief under section 1170.95 extends only to those convicted of murder by operation of the natural and probable consequences doctrine or of felony murder"], review granted; People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [defendant "was ineligible for relief because he was not convicted of felony murder or murder as an aider or abettor under a natural and probable consequences theory"], review granted Mar. 18, 2020, S260410; People v. Larios (2019) 42 Cal.App.5th 956, 969 ["The plain language of section 1170.95, subdivision (a) limits relief to persons 'convicted of felony murder or murder under a natural and probable consequences theory'"], review granted Feb. 26, 2020, S259983; cf. People v. Garcia (2020) 57 Cal.App.5th 100, 112 ["The jury instructions show that appellant satisfied the first criterion for section 1170.95 relief—he was 'convicted of . . . murder under a natural and probable consequences theory'"], review granted Feb. 10, 2021, S265692.)
Dean was not convicted of felony murder (he does not contend he was) or of murder under a natural and probable consequences theory. The trial court did not give any instructions on felony murder, and because the trial occurred after the Supreme Court's decision in People v. Chiu, supra, 59 Cal.4th 155, the trial court did not instruct on first degree murder under the natural and probable consequences theory. Instead, following Chiu, the trial court instructed the jury that it could only convict Dean of second degree murder under the natural and probable consequences theory. The jury's verdict of first degree murder eliminated the possibility that it relied on the natural and probable consequences theory to convict Dean of murder. Therefore, Dean is ineligible for relief under section 1170.95 as a matter of law. (See People v. Soto, supra, 51 Cal.App.5th at p. 1059 ["the jury instructions given at [the defendant's] trial conclusively demonstrate as a matter of law that he was not convicted of murder under a natural and probable consequences theory or of felony murder"], review granted.)
Dean contends that, had the superior court applied the correct standard at the hearing on the order to show cause, "the prosecutor would not be able to demonstrate that [Dean] was convicted of first degree murder under [a] theory of murder liability that is still valid" because, "[b]ased on the prosecutor's arguments," the jury "may have convicted [him] of first degree murder without finding that he acted with at least implied malice, . . . or under the natural and probable consequences doctrine." We concluded in Dean I, however, that the prosecutor did not misstate the law on aiding and abetting. And as for the prosecutor's misstatement about murder by lying in wait, we held in Dean I that, given the abundant evidence of implied malice, there was "no reasonable probability that the jury would have failed to find beyond a reasonable doubt that Dean had acted with malice." (Dean I, supra, B258746.) There is no reasonable probability that the superior court, sitting as an independent factfinder, would not have reached the same conclusion.
Because Dean was not convicted of felony murder or murder under a natural and probable consequences theory, he was ineligible for relief under section 1170.95 as a matter of law. Remanding the matter for the superior court to reassess the evidence under a different standard of proof would not change the fact that Dean is ineligible. (See People v. Edwards, supra, 48 Cal.App.5th at p. 675 ["since [the defendant] does not fall within the provisions of section 1170.95 as a matter of law, any of the purported errors" in failing to appoint counsel, ordering briefing, and holding a hearing "were harmless under any standard of review [citations] and remand would be an idle act"], review granted.)
B. Dean's Counsel in the Section 1170 .95 Proceedings Did Not Provide Ineffective Assistance
Dean contends his counsel provided ineffective assistance in the section 1170.95 proceedings by (1) stating in her reply memorandum that "the information filed in this case against . . . Dean allowed the prosecution to proceed under both a felony murder and/or murder under the natural and probable consequences doctrine," which (in Dean's view) incorrectly described the theories pursued by the prosecutor at trial; and (2) misunderstanding the purpose, and failing to adequately prepare for, the hearing on the order to show cause. According to Dean, "If counsel had been prepared for the evidentiary hearing," she would "have had the opportunity to present additional evidence," "realized that the court was not applying the correct standard," and "argued that the prosecutor's closing argument allowed the jury to improperly convict [Dean] of first degree murder."
"'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'" (People v. Bell (2019) 7 Cal.5th 70, 125; accord, People v. Windfield (2021) 59 Cal.App.5th 496, 520.)
Even if counsel's performance fell below an objective standard of reasonableness and there was no satisfactory explanation for the decisions she made in representing Dean on his petition, Dean cannot show prejudice. (See People v. Johnsen (2021) 10 Cal.5th 1116, 1168 ["'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'"].) As discussed, because Dean is statutorily ineligible for relief under section 1170.95, there is no reasonable probability he would have obtained a more favorable result absent any claimed deficiencies in his counsel's performance. Nothing his counsel did or did not do could have changed the fact that the jury did not convict him of felony murder or murder under the natural and probable consequences doctrine.
A hard showing for Dean to make. His attorney on the section 1170.95 petition argued for the correct standard of proof under section 1170.95, subdivision (d)(3) (anticipating, by almost a year, our holding in Rodriguez, supra, 58 Cal.App.5th 227, review granted), contended the jury did not find Dean had the intent to kill, and understood the purpose of the hearing on the order to show cause.
Whether a petitioner has a constitutional right to effective assistance of counsel in section 1170.95 proceedings is unclear. Section 1170.95 "is an act of lenity not subject to Sixth Amendment analysis." (People v. James (Apr. 27, 2021, A159207) ___ Cal.App.5th ___, ___ [2021 WL 1625015, p. 1]; see People v. Perez (2020) 54 Cal.App.5th 896, 908, review granted Dec. 9, 2020, S265254; People v. Lopez, supra, 38 Cal.App.5th at pp. 1114-1115, review granted Nov. 13, 2019, S258175.) Once the petitioner makes a prima facie showing under section 1170.95, subdivision (c), he or she has a right to court-appointed counsel (see Verdugo, supra, 44 Cal.App.5th at p. 332, review granted; People v. Lewis, supra, 43 Cal.App.5th at p. 1140, review granted), a statutory right that may also be grounded in due process (see In re Clark (1993) 5 Cal.4th 750, 779-780 [petitioner has a constitutionally grounded due process right to appointment of counsel after making a prima facie case of entitlement to relief in habeas corpus proceeding]; People v. Shipman (1965) 62 Cal.2d 226, 232 [same for coram nobis proceeding]). But as the court explained in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, "having a constitutional right to the appointment of counsel is not the same as having a constitutional right to the effective assistance of that counsel," and the "Supreme Court has steadfastly held that 'there is no constitutional right to the effective assistance of counsel' in state postconviction proceedings." (Id. at p. 1032.) Because Dean has not shown his counsel provided ineffective assistance, we do not reach that issue. --------
DISPOSITION
The order denying Dean's petition under section 1170.95 is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.