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Defendant Entitled to Hearing on 1170.95 Petition

California v. Barboza Court: California Courts of Appeal, Docket: G059299 (Fourth Appellate District), Opinion Date: September 15, 2021. In 2008, defendant Antonio Barboza was initially convicted of first degree murder with a gang special circumstance. The trial court reduced the conviction to second degree murder, struck the special circumstance, and sentenced defendant to 15 years to life plus 25 years to life for the murder and a vicarious firearm enhancement. On direct appeal, the Court of Appeal affirmed the judgment. In June 2019, defendant filed a petition for resentencing in the trial court pursuant to Penal Code section 1170.95, and received appointed counsel. The court subsequently found defendant had not set forth a prima facie case for relief because the jury’s special circumstance finding required that defendant personally harbored an intent to kill. The Court of Appeal found, however, that the court erred by using the jury’s findings as to first degree murder with the special circumstance, as the court struck those findings and entered a conviction for second degree murder at the time of sentencing. Accordingly, defendant presented a prima facie case for relief and was entitled to a hearing on his 1170.95 petition. The Court thus reverses, and directed the trial court on remand to issue the appropriate order to show cause.

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