Filed 2/15/22 P. v. Twyman CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 s pecified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Re spondent,

v.

ANTHONY DAWAYNE TWYMAN,

Defendant and Appellant. B 30 4515

, B306643

(Los Angeles County Super. Ct. No. T A 13964 2 )

APPEAL from orders of the Superior Court of Los Angeles County, Pat Connolly, Jud ge

. Reversed with directions

.

Jonat han E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Beccera, Attorney s General, Lance E. Winters, Chief Assi s tant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee , A manda V. Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________2 Pursuant to an order of the California Supreme Court filed January 5 , 2022, we vacate our previous opinion filed April 7, 2021, and reconsider our ruling in light of Senate Bill No. 775 (2021

– 2022 Reg. Sess.)

. On September 29, 2017, appellant Anthony Dawayne Twyman entered a plea to attempted murder and other sentencing enhancements. The trial court sentenced him to imprisonment for 20 years

. O n October 17, 2019, appellant filed a petition for resentencing pursuant to Penal Code section 1170.95. 1 Without appointing counsel, the trial court summarily denied the petition, finding appellant ineligible for relief because he was “not
convicted of mu rder.” Appellant appeals the denial of his petition s for resentencing

. 2 He argues the trial court ’s summary denial of his petition without appointing counsel violated not only the clear language of the statute, but also his state and federal
constitutiona l rights to due process and the assistance of counsel.
S ection 1170.95 originally allow ed defendants convicted of murder under the theory of felony murder or the doctrine of natural and probable consequences to petition the trial court to
vacate such convi ctions and resentence them. During the pendency of this appeal

, section 1170.95 , subdivision (a) was

1 All undesignated statutory references are to the Penal Code.

2 Appellant filed two notices of app eal from the denial of two resentencing petitions he filed. We ordered the appeals consolidated. This disposition addresses all issues raised by the denials of the two petitions.3

amended to exp r essly permit resentencing of persons convicted of attempted murder under a natural and probable consequen c es theory. (Sen. Bill No. 775 (2 020

– 2021 Reg. Sess.); § 1170.95, as amended by Stats. 2021, ch. 551, § 2 , subd. (a).) The parties now

agree , as do we, that the matter must be remanded to the trial court to determine whether petitioner has made a prima facie showing of entitlement to rel ief. In light of the foregoing, we reverse the trial court’s order denying th e petition and remand for further proceedings. As to appointment of counsel, People v. Lewis (2021)

11 Cal.5th 952 , 957 holds that upon the filing of a facially sufficient petiti on, the trial court must appoint counsel upon request. The parties do not dispute

, and we find

, that appellant’s petition was facially sufficient. Therefore, before determining whether a prima facie case for relief has been made, the trial
court must app oint counsel to assist appellant with his petition.4 DISPOSITION
The orders are reversed. The trial court is directed to appoint counsel and proceed under section 1170.95, subds. (b), (c), and (d), if an evidentiary hearing is warranted by the trial court ’s prima facie determination.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.