Opinion
F080439
05-12-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHNNIE ALBERT BENNETT, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF230530)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Detjen, J. and Peña, J.
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INTRODUCTION
A jury convicted defendant Johnnie Albert Bennett of first degree murder and this court affirmed the conviction in 2011. After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to Penal Code section 1170.95. (Undesignated statutory references are to the Penal Code.) The court denied defendant's section 1170.95 petition for failure to state a prima facie case based on the court's finding defendant had been a major participant in the offense. In this appeal, defendant argues the court erred in denying the petition without issuing an order to show cause and holding an evidentiary hearing. The People concede the court's conclusion defendant was ineligible for relief as a matter of law was based upon improper factfinding at the prima facie stage; however, they assert any alleged error was harmless because defendant was categorically ineligible for relief.
We reverse the trial court's order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of first degree murder (§ 187; count 1) based on evidence he and his nephew beat the victim, Richard Hopper, and Hopper died as a result. At trial, the prosecution presented evidence defendant and his nephews, Charles and Ricky Peters, picked up Hopper, "ostensibly to take him somewhere to cash his social security check to repay money he owed" defendant. (People v. Bennett (Aug. 9, 2011, F060576) [nonpub. opn.] [2011 Cal.App. Unpub. Lexis 5981 at pp. *1-*3; 2011 WL 3506418 at p. *1].) Instead, they took Hopper to an orange grove. (Ibid.) During the drive, defendant "was angry and kept asking Hopper about the location of certain guns." (Ibid.) Defendant threatened to beat up Hopper if he did not reveal the guns' location, but Hopper maintained he did not know where the guns were. (Ibid.) When they arrived at the orange grove, defendant and Ricky beat Hopper for 20 to 30 minutes. (Ibid.) Hopper's body was discovered on the side of the dirt road next to the orange grove later that evening. (Ibid.) The autopsy revealed Hopper died as a result of blunt force trauma to the face and head. (Ibid.)
We grant defendant's unopposed motion asking that we take judicial notice of our prior unpublished opinion in this matter pursuant to Evidence Code sections 452, subdivision (a), and 459, subdivision (a).
In 2019, defendant submitted a petition for resentencing pursuant to section 1170.95 using a form prepared by Re:Store Justice, a cosponsor of Senate Bill 1437. He checked boxes stating that a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or murder under the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of first degree murder but could not now be convicted because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree, and he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. He also checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process."
Two days after defendant filed his petition, and before any response was filed by the People, the court denied the petition, concluding the "facts of the crime do not qualify for the requested relief. He was a major participant."
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We agree the court erred in denying the petition on the stated basis and conclude remand is necessary.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends sections 188, which defines malice, and 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4.)
Accordingly, section 188 now provides that, "[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Newly enacted section 1170.95 permits those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ...." (Id., subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)-(3).)
A trial court receiving a petition under section 1170.95 "shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court "shall issue an order to show cause." (Ibid.) The trial court must then hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been previously been [sic] sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).)
2. Analysis
Defendant asserts the court erred in denying his 1170.95 petition based on its conclusion he was a major participant in the underlying felony because the court also had to conclude he was the actual killer or acted with reckless indifference to human life in order to conclude he was ineligible for relief, which it failed to do. He further asserts his petition set forth a prima facie showing he was entitled to relief and the court's articulated basis for rejecting the petition was insufficient under the statutory scheme. He contends, "Given the court's silence as to other factors, this presented a case for a hearing under section 1170.95." The People concede "the superior court's rationale for denying the instant petition involved improper fact-finding" because the court had to draw factual inferences from the record to conclude defendant was a major participant in the underlying felony, which is not permitted at the prima facie stage. However, the People assert the record nevertheless establishes defendant was ineligible for resentencing as a matter of law because the jury was not instructed on murder under the natural and probable consequences doctrine or pursuant to a felony-murder theory. Rather, the jury was instructed on first degree murder based on two theories: premeditation and deliberation, and lying in wait. The jury was also instructed on direct aiding and abetting. Accordingly, defendant's first degree murder conviction was not abrogated by Senate Bill 1437.
Here, the record before us establishes the court erroneously denied defendant's petition for resentencing on the grounds that defendant was a major participant in the underlying felony. As the parties note, the record does not support such a conclusion as a matter of law. Rather, the court would have had to engage in a weighing of the facts in order to render such a conclusion, which was inappropriate at the prima facie showing stage. (People v. Drayton (2020) 47 Cal.App.5th 965, 980 [court's "authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subdivision (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion"]; People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, 815 [similar].) Additionally, if defendant was prosecuted under a felony-murder theory, the court was also required to conclude defendant acted with reckless indifference (or was guilty as the actual killer or as a direct aider and abettor) as a matter of law to render him categorically ineligible for relief under section 189. (§ 189, subd. (e).) The record before us also does not support such a conclusion as a matter of law. Thus, the denial of defendant's petition on the court's stated basis was erroneous.
The People, however, urge us to affirm the court's denial of defendant's petition on other grounds, namely that the jury was not instructed on felony murder or the natural and probable consequences doctrine; thus, he was not eligible for relief as a matter of law. In support of their argument, the People appear to cite to the record from defendant's original appeal. It is true that pursuant to Evidence Code section 452, subdivision (d) we may take judicial notice of our court's records. But here, the People did not provide this record on appeal or move for us to take notice of it as required by California Rules of Court, rule 8.252. Rule 8.252 requires, in part, a party to serve and file a separate motion with a proposed order regarding the matter to be noticed and to attach to the motion a copy of the matter to be noticed or an explanation of why it is not practicable to do so. Without the referenced record before us, we are unable to assess the validity of the People's argument. Thus, to the extent the People assert the record nevertheless establishes defendant is categorically ineligible for resentencing on other grounds—that is, that the jury was not instructed on felony murder or natural and probable consequences—we remand to the trial court to consider that argument in the first instance and for further proceedings consistent with the procedures prescribed by section 1170.95, subdivision (c).
It does not appear the People had an opportunity to respond to defendant's petition below before the court issued its order denying the petition. --------
DISPOSITION
The court's order denying the section 1170.95 petition is reversed, and the matter is remanded for further proceedings consistent with section 1170.95, subdivision (c).