Filed 2/15/22 P. v. Twyman CA2/8
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304515, B306643
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139642)
v.
ANTHONY DAWAYNE
TWYMAN,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Pat Connolly, Judge. Reversed with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Beccera, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Charles S. Lee, Amanda V.
Lopez and Nima Razfar, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
Pursuant to an order of the California Supreme Court filed
January 5, 2022, we vacate our previous opinion filed April 7,
2021, and reconsider our ruling in light of Senate Bill No. 775
(2021–2022 Reg. Sess.).
On September 29, 2017, appellant Anthony Dawayne
Twyman entered a plea to attempted murder and other
sentencing enhancements. The trial court sentenced him to
imprisonment for 20 years.
On October 17, 2019, appellant filed a petition for
resentencing pursuant to Penal Code section 1170.95. 1 Without
appointing counsel, the trial court summarily denied the petition,
finding appellant ineligible for relief because he was “not
convicted of murder.”
Appellant appeals the denial of his petitions for
resentencing.2 He argues the trial court’s summary denial of his
petition without appointing counsel violated not only the clear
language of the statute, but also his state and federal
constitutional rights to due process and the assistance of counsel.
Section 1170.95 originally allowed defendants convicted of
murder under the theory of felony murder or the doctrine of
natural and probable consequences to petition the trial court to
vacate such convictions and resentence them. During the
pendency of this appeal, section 1170.95, subdivision (a) was
1 All undesignated statutory references are to the Penal
Code.
2 Appellant filed two notices of appeal from the denial of two
resentencing petitions he filed. We ordered the appeals
consolidated. This disposition addresses all issues raised by the
denials of the two petitions.
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amended to expressly permit resentencing of persons convicted of
attempted murder under a natural and probable consequences
theory. (Sen. Bill No. 775 (2020–2021 Reg. Sess.); § 1170.95, as
amended by Stats. 2021, ch. 551, § 2, subd. (a).) The parties now
agree, as do we, that the matter must be remanded to the trial
court to determine whether petitioner has made a prima facie
showing of entitlement to relief. In light of the foregoing, we
reverse the trial court’s order denying the petition and remand
for further proceedings.
As to appointment of counsel, People v. Lewis (2021)
11 Cal.5th 952, 957 holds that upon the filing of a facially
sufficient petition, the trial court must appoint counsel upon
request. The parties do not dispute, and we find, that appellant’s
petition was facially sufficient. Therefore, before determining
whether a prima facie case for relief has been made, the trial
court must appoint counsel to assist appellant with his petition.
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DISPOSITION
The orders are reversed. The trial court is directed to
appoint counsel and proceed under section 1170.95, subds. (b), (c),
and (d), if an evidentiary hearing is warranted by the trial court’s
prima facie determination.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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