Opinion
B315989
06-12-2023
THE PEOPLE, Plaintiff and Respondent, v. KENNETH BENNETT, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA372681, William C. Ryan, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EGERTON, J.
Defendant and appellant Kenneth Bennett appeals from the superior court's order denying his petition for resentencing under Penal Code section 1172.6. We affirm.
References to statutes are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
We take the factual background from our opinion in Bennett's direct appeal, People v. Bennett (July 7, 2014, B246567) [nonpub. opn.] (Bennett I) and the record on appeal in that case. We previously granted Bennett's request for judicial notice of the transcripts in that appeal as well as our opinion. We also granted Bennett's motion to augment the record on appeal with (among other documents) the opinion on direct appeal.
On May 31, 2010, Christopher Galloway, Aaron Loud, and Deandre Smith were at a party at Regina Robertson's home. All of the guests were Robertson's friends and family members. Around 12:30 a.m. Bennett arrived with another man. Robertson didn't know Bennett and had not invited him. (Bennett I.)
Galloway, Loud, and Smith were on Robertson's porch. Bennett and his companion approached. Bennett-who did all the talking-asked if they could join the party. Bennett's demeanor was aggressive and his tone of voice was" 'real hostile.'" Bennett asked," '[W]here are you all from? The 8-Tre gangsters?'" Bennett kept reaching into the big front pocket of his hooded sweatshirt, and Loud saw the butt of a handgun sticking out of the pocket. (Bennett I.)
Smith, Loud, and Galloway began moving toward the front door. Bennett kept saying," '8-Tre gangsters. We're going to get into this party.'" Loud turned and saw Bennett's companion pointing a small caliber handgun at Loud's head. Smith and Loud made it into the house. The door slammed shut behind them with Galloway still on the porch. Loud heard two or three gunshots in rapid succession. (Bennett I.)
When Robertson heard screaming, she went outside and saw Galloway lying in a fetal position near her front door. Galloway died from gunshot wounds to his chest and back. The wounds were caused by two different calibers of bullets. (Bennett I.)
Loud identified Bennett in a photo array. Police arrested Bennett several weeks later. Before the arrest, police saw Bennett walk into one residence, leave, and then enter a second residence. Police found a .25 caliber semiautomatic handgun in the first residence; testing showed it to be the gun that had fired the .25 caliber casings found on Robertson's lawn. Bennett gave police several different stories about his involvement in the murder. In a call from jail to his grandmother, Bennett said," 'I shouldn't have said nothing, grandma.'" (Bennett I.)
The People charged Bennett with Galloway's murder. The People alleged Bennett committed the crime for the benefit of or in association with a gang and that a principal personally used and discharged a firearm causing death to Galloway. Bennett was tried twice. The first jury acquitted him of first degree murder but was unable to reach agreement on second degree murder. The second jury convicted Bennett of second degree murder and found the gang and firearm allegations true. The trial court sentenced Bennett to 40 years to life, calculated as 15 years to life for the murder plus 25 years to life for the firearm enhancement. Another panel of this court affirmed Bennett's conviction. (Bennett I.)
In November 2019 Bennett filed a petition for resentencing under section 1172.6. On a preprinted form, Bennett checked boxes stating an information had been filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, he was convicted at trial under the felony murder rule or the natural and probable consequences doctrine, and he could not now be convicted of murder because of changes made to the Penal Code effective January 1, 2019. Bennett also checked the box asking the court to appoint counsel for him.
The court reappointed the public defender's office- which had represented Bennett at trial-to represent him. On January 7, 2020, the prosecution filed an opposition to Bennett's petition. The prosecution contended Bennett still could be convicted of second degree murder because he "acted with malice aforethought."
On July 20, 2020, private counsel substituted in for Bennett. On February 2, 2021, the prosecution filed a supplemental response conceding Bennett had made a prima facie case because one of the theories the prosecution argued at his trial was that he "committed the crime of assault with a deadly weapon, the natural and probable consequence of which was murder." Based on this concession, the court issued an order to show cause and set the matter for an evidentiary hearing under section 1172.6, subdivision (d).
On July 16, 2021, the prosecution filed an evidentiary hearing brief. The prosecution argued Bennett was ineligible for resentencing because he "acted with malice aforethought, sufficient to sustain a second degree murder conviction under the newly amended section 188." Bennett, the prosecution said, was either a direct perpetrator or a direct aider and abettor of Galloway's murder. The prosecution noted both Bennett and his companion were armed, both men shot at Galloway and struck him, "and together they caused his death." Bennett's "aggressive and inciting gang language prior to shooting underscores this intent."
On August 4, 2021, Bennett's counsel filed a supplemental brief. Apparently confusing the law governing direct appeals with the standard applicable in section 1172.6 proceedings, counsel argued that-because the trial court had instructed the jury on the natural and probable consequences doctrine- Bennett's "conviction [had to] be reversed unless [the] court determine[d] that the error was harmless beyond a reasonable doubt."
The court conducted the subdivision (d) hearing on August 4, 2021. Bennett was present with his privately-retained counsel. Both the prosecutor and Bennett's counsel confirmed they did not plan to call any live witnesses. The court noted it had been the trial judge in Bennett's second trial. The court received both parties' pleadings and exhibits into evidence. After hearing from counsel at length, the court took the matter under submission.
On September 13, 2021, the trial court issued a written decision denying Bennett's petition.
Bennett appealed and we appointed counsel to represent him on appeal. After examining the record, counsel filed an opening brief stating she had "found no arguable issues to raise on appeal" and asking this court independently to review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel stated she had written to Bennett to explain her evaluation of the record and her intention to file a Wende brief. Counsel had informed Bennett of his right to file a supplemental brief, and advised him that if he did not file a supplemental brief, "this Court may dismiss his appeal." Counsel had sent Bennett a copy of her brief and "the transcripts of the record on appeal."
On September 30, 2022, we sent Bennett a letter advising him he could submit, within 30 days, "a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments which [he] wishes this court to consider." However, our letter did not tell Bennett that, if he failed to submit a supplemental brief, we could dismiss his appeal. Between October 21, 2022, and January 30, 2023, Bennett submitted four requests for extensions of time to file a supplemental brief. We granted each of Bennett's four requests. We never received a supplemental brief from Bennett.
While this appeal was pending, the California Supreme Court issued People v. Delgadillo (2022) 14 Cal.5th 216. The court held the procedures in Anders v. California (1967) 386 U.S. 738 and Wende do not apply to appeals from the denial of postconviction relief under section 1172.6. (Delgadillo, at pp. 224, 226.) However, invoking its inherent supervisory power to prescribe a basic procedural framework for section 1172.6 no-issue appeals, the high court stated the appellate court should notify the defendant of his right to file a supplemental brief and that the failure to do so could result in a dismissal of the appeal. (Delgadillo, at pp. 231-232.) Here, while counsel notified Bennett of that fact, our letter did not. Accordingly, we exercise our discretion independently to review the record in this case under Wende. (Delgadillo, at p. 232.)
DISCUSSION
Senate Bill No. 1437 (Senate Bill 1437) took effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971.) The bill added subdivision (a)(3) to section 188, which states that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3). See People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Harden (2022) 81 Cal.App.5th 45, 50-51.)
In 2021, the Legislature significantly amended the statute in Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2). The Governor signed the new legislation on October 5, 2021, and it took effect on January 1, 2022.
Section 1172.6 provides a mechanism by which a person convicted of murder under the former law may be resentenced if he could no longer be convicted of murder because of the changes to section 188. (Strong, supra, 13 Cal.5th at p. 708.) Once a petitioner establishes a prima facie case for relief and the superior court issues an order to show cause, the matter proceeds to an evidentiary hearing at which it is the prosecution's burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (Id. at pp. 708-709; People v. Vargas (2022) 84 Cal.App.5th 943, 951 (Vargas).) If the court finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to sections 188 and 189, the petitioner is ineligible for relief under section 1172.6. (Strong, at pp. 708-709.)
While the superior court acts as an independent factfinder in determining whether the People have met their burden, on appeal the reviewing court applies the substantial evidence standard. (People v. Garrison (2021) 73 Cal.App.5th 735, 745, 747 (Garrison).) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Nieber (2022) 82 Cal.App.5th 458, 476; People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) Substantial evidence also includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57; Nieber, at p. 476.)
A person who was the actual killer is ineligible for resentencing. (Garrison, supra, 73 Cal.App.5th at pp. 738, 743-744, 747. See Stats. 2018, ch. 1015, § 1(f) [Senate Bill 1437 enacted "to ensure that murder liability is not imposed on a person who is not the actual killer"].) Moreover, direct aiding and abetting a murder-including aiding and abetting with implied malice-remains a valid theory of liability for second degree murder. (People v. Werntz (2023) 90 Cal.App.5th 1093, 1111-1113; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388, 391; Vargas, supra, 84 Cal.App.5th at pp. 954-955; People v. Schell (2022) 84 Cal.App.5th 437, 443-444.)
We have independently reviewed the record and find no arguable issues. We are satisfied Bennett's counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order is affirmed.
We concur: EDMON, P.J., HEIDEL, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.