People v. Herrera CA2/7

Filed 3/1/22 P. v. Herrera CA2/7 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 speci fied 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B301607

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA066571) v.

ANTHONY HERRERA,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Patrick E. Connolly, Judge. Affirmed. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Charles S. Lee and

Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent. __________________ Anthony Herrera, convicted after a jury trial in 2004 of attempted murder and robbery, appealed the summary denial of his petition for resentencing under Penal Code section 1170.95,1 contending the superior court had erred in ruling section 1170.95 did not apply to attempted murder and denying his petition without appointing counsel and conducting a hearing at which the parties could present evidence. We affirmed the order based on prior decisions from this and other courts of appeal that had rejected identical arguments. After granting Herrera’s petition for review, the Supreme Court transferred the case to us with directions to vacate our prior decision and reconsider Herrera’s appeal in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). In supplemental briefing Herrera argues, based on the new legislation and the Supreme Court’s decision in Lewis, the case should be remanded for the superior court to appoint counsel, issue an order to show cause and conduct an evidentiary hearing. The Attorney General agrees section 1170.95 resentencing relief is now available to certain individuals convicted of attempted murder and it was error not to appoint counsel following Herrera’s filing of a facially sufficient petition. However, the Attorney General contends those errors were harmless and no remand is necessary because Herrera was convicted as a direct perpetrator of the attempted murder and is ineligible for