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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specified 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respondent,

v.

ANTHONY DAWAYNE 

TWYMAN,

Defendant and Appellant.

B304515, B306643

(Los Angeles County

Super. Ct. No. TA139642)

APPEAL from orders of the Superior Court of Los Angeles 

County, Pat Connolly, Judge. Reversed with directions.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Beccera, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, Charles S. Lee, Amanda 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.

On 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 murder.”

Appellant appeals the denial of his petitions 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 

constitutional rights to due process and the assistance of counsel.

Section 1170.95 originally allowed 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 convictions 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 appeal 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 expressly permit resentencing of persons convicted of 

attempted murder under a natural and probable consequences 

theory. (Sen. Bill No. 775 (2020–2021 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 relief. In light of the foregoing, we 

reverse the trial court’s order denying the 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 petition, 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 appoint 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.