People v. Barnett CA2/4

Filed 10/6/21 P. v. Barnett CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B309144

Plaintiff and Respondent, Los Angeles County Super. Ct. No. KA086630 v.

DUANE BARNETT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2010, a jury convicted defendant and appellant Duane Barnett of attempted murder and found firearm and gang allegations true. The trial court sentenced him to 40 years to life in state prison. In 2020, Barnett filed a petition for resentencing under Penal Code section 1170.95.1 The trial court summarily denied the petition, concluding Barnett was ineligible for relief as a matter of law because he was convicted of attempted murder, not murder. On appeal, Barnett argues reversal is required because the trial court erred in concluding section 1170.95 does not apply to individuals convicted of attempted murder. He also argues the court prejudicially erred by denying his petition without first appointing counsel. We reject these contentions and affirm the order denying Barnett’s petition.

PROCEDURAL BACKGROUND

In 2010, a jury convicted Barnett of attempted murder (count one; §§ 664/187, subd. (a)) and assault with a deadly weapon (count two; § 245, subd. (a)(2)). The jury found true firearm and gang allegations attached to counts one and two. (§§ 12022.53, subds. (b)-(d), 186.22, subd. (b) [count one]; §§ 12022.5, subd. (a), 186.22, subd. (b) [count two].) The trial court sentenced him to 40 years to life for the attempted murder conviction and sustained firearm and gang allegations, and stayed sentencing on count two under section 654. In 2020, Barnett filed a petition for resentencing under section 1170.95. In his petition, Barnett requested that counsel