People v. Marsh CA4/1

Filed 8/31/21 P. v. Marsh CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078224

Plaintiff and Respondent,

v. (Super. Ct. No. CR-59191)

DENIS PAUL MARSH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Reversed and remanded with directions. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis, and Christine L. Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

In 1983, Denis Paul Marsh was convicted in a court trial of first degree

murder (Pen. Code,1 § 187); conspiracy to commit burglary (§§ 182.1 and 459); robbery (§ 211); and one count of arson (§ 451, subd. (b)). The court found Marsh used a deadly weapon (§ 12022, subd. (b)) and that he personally inflicted great bodily injury on the victim (§ 12022.7). Marsh was sentenced to an indeterminate term of 26 years to life in prison. Marsh appealed and this court affirmed the judgment in an unpublished opinion People v. Marsh (Apr. 9, 1985, D000355). In 2019, Marsh filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, considered the record of conviction, and held a hearing at which both parties submitted on the briefs. The court found Marsh was an active participant in the homicide and denied the petition for resentencing. Marsh appeals contending the court engaged in impermissible factfinding without issuing an order to show cause (OSC). The Attorney General originally conceded error. After briefing was completed, the Supreme Court issued its opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis). There, the court held that a trial judge considering whether a petition filed under section 1170.95 stated a prima facie case for relief, could review the record of conviction, including any prior appellate opinion. The court concluded a trial court could rely on that record and deny a petition without an OSC, if the record demonstrated the petitioner is not eligible for relief as a matter of law. The limitation on such authority is the court may not engage in finding facts. Evidentiary evaluation must await the issuance of an OSC and an appropriate evidentiary hearing. (Lewis, at pp. 970-973.)