People v. Huerta CA4/1

Filed 10/25/23 P. v. Huerta CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081054

Plaintiff and Respondent,

v. (Super. Ct. No. SCD189649)

DAVID HUERTA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Michael S. Groch, Judge. Reversed with directions. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1 David Huerta appeals from an order denying his petition for resentencing of a 2015 second degree murder conviction under Penal Code

section 1172.6.2 The People concede the trial court erred by denying Huerta relief at the prima facie stage without appointing counsel or allowing briefing. We accept the concession. During a gang-related brawl between Huerta and his companions on the one hand, and J.H. and his companions on the other, J.H. was stabbed 29 times and died. A jury found Huerta guilty of second degree murder (§ 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury acquitted Huerta of first degree murder (§ 187, subd. (a)). The trial court sentenced Huerta to a three-year state prison term for the assault conviction, plus a consecutive term of 15 years to life on the second degree murder conviction. On direct appeal, we affirmed the judgment. (People v. Huerta (Feb. 15, 2017, D069552) [nonpub. opn.].) On July 20, 2022, Huerta filed a form petition for resentencing under section 1172.6 as a self-represented litigant. He checked the box requesting appointment of counsel. The trial court denied the petition⎯without appointing counsel, without any briefing, and without a hearing⎯stating: “Petitioner was the actual killer and was convicted under that theory. Since