Filed 8/5/22 P. v. Duval CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ---- THE PEOPLE, Plaintiff and Respondent, C089098 v. (Super. Ct. No. CRF939600606) JAMES ELMOND DUVAL, ON TRANSFER Defendant and Appellant. In 1994, defendant James Elmond Duval pleaded no contest to second degree murder and admitted a firearm-use enhancement allegation. The trial court sentenced him to an indeterminate term of 15 years to life in prison for the murder, plus a determinate term of five years for the enhancement. In 2019, defendant filed a petition for resentencing pursuant to Penal Code section 1170.95.1 The trial court summarily 1 Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and conformity with the petition, we will continue to refer to the statute as section 1170.95 throughout the opinion. Further undesignated statutory references are to the Penal Code. 1 denied the petition without appointing counsel, concluding defendant was not eligible for resentencing as a matter of law. This court affirmed the trial court’s order. The California Supreme Court granted defendant’s petition for review and deferred further action pending disposition in a related case. After issuing its opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the Supreme Court transferred the matter back to us with directions to vacate this court’s decision and reconsider the cause in light of Lewis. We vacated the prior decision and reconsidered the matter in light of Lewis and the parties’ supplemental briefs. Although the trial court should have appointed counsel to represent defendant when he filed a facially sufficient petition containing a request for counsel, the error was harmless. Accordingly, we will affirm the trial court’s order. BACKGROUND Defendant pleaded no contest to second degree murder and admitted personally using a firearm in the commission of the murder. According to the factual basis for the plea, on January 6, 1993, defendant intentionally killed Terry Boyds with a firearm. Defendant agreed with the factual basis. Among other things, there was evidence at the preliminary hearing that defendant acquired a gun, shot Terry Boyds, and that Boyds died from multiple gunshot wounds. A witness said defendant admitted shooting Boyds but that another individual named Bechtell also claimed to have killed Boyds. Represented by new counsel, defendant subsequently sought to withdraw his no contest plea on the grounds that his former counsel was not prepared for trial and that defendant had understood he could enter a no contest plea but still continue to build a defense and ask the Court of Appeal for a trial. Defendant …
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