The judge denied resentencing 1172.6 at the prima facie hearing. The jury was not instructed on a felony theory. Help

Question

My brother petition should have been given a evidentiary hearing before a decision was made by the court. What can I do next to help my brother's case for resentencing

James L. Arrasmith · Answer

If the judge denied your brother's 1172.6 petition at the prima facie stage despite the absence of felony murder jury instructions, you have grounds for appeal. This type of denial without an evidentiary hearing may be procedurally improper, particularly if there are disputed facts that need to be resolved. 
 
Your first step should be to file a notice of appeal within 60 days of the denial order. You should consider working with an appellate attorney who can help challenge the denial, as they can argue that the court erred by not proceeding to an evidentiary hearing where your brother could present evidence supporting his petition. 
 
During the appeal process, your attorney can highlight that California law typically requires courts to accept the petitioner's factual allegations as true at the prima facie stage unless they're conclusively refuted by the record. You can also gather and organize relevant court documents, transcripts, and any evidence that shows your brother was not the actual killer or did not act with reckless indifference to human life, as these will be crucial for your appeal. While waiting for the appeal, maintain regular contact with your brother and document any new information that could support his case.

Q: The judge denied resentencing 1172.6 at the prima facie hearing. The jury was not instructed on a felony theory. Help