People v. Madsen CA3

California Court of Appeal Dec 3, 2020 No. C089665Unpublished

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Holding. The court held that a trial court may properly consider the record of conviction when determining whether a petitioner has made a prima facie showing of eligibility for resentencing under Penal Code section 1170.95, and that a petitioner is not entitled to appointed counsel if they fail to make such a showing.

Issues

May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95?
When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?

Disposition. affirmed

Quotations verified verbatim against the opinion

“a trial court properly considers the record of conviction when determining whether a defendant has made a prima facie showing of entitlement to resentencing.”

Filed 12/3/20 P. v. Madsen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C089665

v. (Super. Ct. Nos. 44445, STK- CR-FE-1988-0001246) LEROY MADSEN,

Defendant and Appellant.

In 1989, a jury convicted defendant Leroy Madsen of second degree murder and unlawful taking or driving of a vehicle. The trial court sentenced him to 15 years to life for the murder, with a concurrent term of three years for the vehicle offense. In 2019, defendant filed a petition for resentencing under Penal Code section 1170.95.1 The petition asserted he is eligible for resentencing under that statute and requested appointment of counsel. The trial court summarily denied the petition and the request for counsel.

1 Undesignated statutory references are to the Penal Code.

Defendant now contends that under the procedure mandated by section 1170.95, the trial court should not have considered the record of conviction, should have appointed counsel for him, and should have afforded him a hearing.2 Finding no prejudicial error on this record, we will affirm the trial court’s orders. BACKGROUND In November 1989, a jury convicted defendant of second degree murder (§ 187) and unlawful taking or driving of a vehicle (Veh. Code, § 10851). The trial court sentenced defendant in April 1990 to a term of 15 years to life for the second degree murder, with a concurrent term of three years for the vehicle theft. “Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), effective January 1, 2019, amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also permits, through new section 1170.95, an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437’s changes to the definition of the crime.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 323, fn. omitted, review granted Mar. 18, 2020, S260493 (Verdugo).) On January 8, 2019, defendant filed a petition for resentencing under section 1170.95. He used a form on which he checked boxes indicating he met the requirements for resentencing. He also checked a box requesting appointment of counsel for the

People v. Madsen CA3

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THE PEOPLE,

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