People v. Simmons CA5

Filed 10/27/22 P. v. Simmons CA5 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F079610 Plaintiff and Respondent, (Super. Ct. No. CF94520777) v.

LAWRENCE SIMMONS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. Kendall Dawson Wasley, 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, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Christina Simpson, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Petitioner Lawrence Simmons petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for first degree murder (§ 187). The superior court denied the petitions at the prima facie stage, without appointing counsel, on the ground that petitioner was a major participant in the underlying felony and acted with reckless indifference to human life. On appeal, petitioner argues the superior court erred in failing to appoint counsel and in denying the petitions at the prima facie stage. He contends the jury’s robbery- murder special circumstance, which required the jury to find he was a major participant in the underlying felony and acted with reckless indifference to human life (§ 190.2, subds. (a)(17)(A), (d)), does not preclude relief because it was made prior to our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In our original opinion we held the jury’s robbery-murder special circumstance rendered petitioner ineligible for resentencing as a matter of law. Accordingly, we held any error in failing to appoint counsel or otherwise follow the procedures set out in former section 1170.95, subdivision (c) was harmless. We therefore affirmed the superior court’s denial of the petition. (People v. Simmons (June 16, 2021, F079610) opn. ordered nonpub. Sept. 28, 2022, S270048.) Petitioner petitioned the California Supreme Court for review (S270048). The state high court granted review and ultimately transferred the matter to us with directions to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Pursuant to the California Supreme Court’s order, we vacated our prior opinion. We also advised the parties of our intention to reverse and remand this