People v. Nevarez CA2/6

Filed 10/25/22 P. v. Nevarez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B313876 (Super. Ct. No. TA063973) Plaintiff and Respondent, (Los Angeles County)

v.

EDWARD NEVAREZ,

Defendant and Appellant.

Edward Nevarez appeals from a postjudgment order summarily denying his petition for resentencing under Penal Code1 section 1172.6 (former § 1170.95).2 In 2011, appellant was convicted on two counts of first-degree murder (§§ 187, subd. (a), 189) with true findings on special-circumstance allegations that

1 All statutory references are to the Penal Code unless otherwise noted.

Effective June 30, 2022, section 1170.95 was renumbered 2

section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).

the crimes were committed during a robbery (§ 190.2, subd. (a)(17)(A)). The trial court summarily denied appellant’s petition without appointing counsel after concluding that relief was barred by the jury’s true findings on the special circumstance findings, which were made before our Supreme Court issued its decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th 522 (Clark). Appellant contends that this ruling was erroneous, and our Supreme Court recently so held. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) Accordingly, we reverse and remand for the court to appoint counsel for appellant, issue an order to show cause, and hold an evidentiary hearing in accordance with section 1172.6, subdivision (d).3 FACTUAL AND PROCEDURAL HISTORY 4 Late at night on February 17, 2001, Enrique Hernandez and victims Anthony Esquer and Reynaldo Aguilar were drinking beer in Aguilar’s parked SUV when appellant walked by with Andres Santana. Hernandez knew appellant and Santana as “Eric” and “Blanco,” the monikers they used as members of the Lynwood Dukes gang. Hernandez had no trouble recognizing appellant because he had known him for 10 years. When Hernandez left the SUV to buy more beer, appellant and Santana approached him and asked if he had any money.