People v. Allison
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The Court of Appeal, just as in its recent decision in People v. Galvan (2020) 52 Cal.App.5th 1134, held that a defendant convicted of murder with a felony-murder special circumstance (Pen. Code,1 190.2, subd. (a)(17)) is not eligible for resentencing under section 1170.95.
The court affirmed the trial court's denial of defendant's petition for resentencing. The court published in order to respond to colleagues in Division 5, who in People v. York (2020) 54 Cal.App.5th 250, disagreed with the court's analysis in Galvin. The court explained that there is no reason to believe that defendant's admission of the special circumstance after his original trial was any different in meaning or effect than it would have been if he had made it today. If defendants like defendant were able to petition for relief under section 1170.95, it would create a disparity by giving defendants with pre-Banks and Clark special-circumstance findings an opportunity to retry their cases, even as more recently convicted defendants are denied this opportunity. Furthermore, the Legislature's silence regarding defendants with pre-Banks and Clark special circumstances does not imply that such defendants are eligible for resentencing under section 1170.95. Finally, the purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.
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