People v. Cheshire CA2/4

Filed 2/28/22 P. v. Cheshire CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B312182

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA443099) v.

ANDREW EARL CHESHIRE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed. Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION In 2017, appellant Andrew Earl Cheshire was convicted of attempted murder. In February 2021, he petitioned for resentencing under Penal Code section 1170.95, and requested the appointment of counsel.1 The trial court summarily denied his petition without appointing counsel, finding both that persons convicted of attempted murder were ineligible for relief under section 1170.95, and that even if they were eligible, appellant was not. On appeal, appellant does not dispute his ineligibility for relief. Instead, he argues that the court committed structural error in failing to appoint counsel, requiring reversal regardless of prejudice. The People agree the court erred in failing to appoint counsel, but contend the error is subject to harmless error analysis. The People further contend the error was harmless because appellant was necessarily convicted on a finding of malice, and not under the natural and probable consequences doctrine or the felony murder rule. We agree with the People and affirm.