People v. Neal CA5 ( 2021 )

Filed 9/24/21 P. v. Neal CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081361
Plaintiff and Respondent,
(Super. Ct. No. 1049999)
v.
BENSON ROBERT NEAL, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
Mary K. McComb, State Public Defender, Jessie Hawk, Deputy State Public
Defender, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,
Eric L. Christoffersen, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Snauffer, J. and DeSantos, J.
INTRODUCTION
In 1983, a jury convicted petitioner Benson Robert Neal of the first degree murder
of Dixon Flinders.1 (Pen. Code,2 § 187.) For this offense, the trial court sentenced
petitioner to a term of 25 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court denied the petition without a hearing on the ground that petitioner was a major
participant in the underlying felony who acted with reckless indifference for human life, a
disqualifying factor pursuant to section 1170.95, subdivision (a)(3).
On appeal, petitioner asserts he established a prima facie claim for resentencing
relief, and the court therefore erred in denying the petition without issuing an order to
show cause. The People concede error. We agree and reverse.
FACTUAL AND PROCEDURAL HISTORY
In this court’s opinion on petitioner’s direct appeal, we described the facts leading
to his convictions as follows:
“On June 6, 1982, [petitioner] and others [including two men (Aleo
and Ford), charged and convicted in a separate trial, and Sharon Poma (who
was given immunity)] were at the home of Sharon Poma and her husband
Bill Poma. Eventually [petitioner] asked if anyone had any marijuana,
which apparently no one did. [Petitioner] suggested that a marijuana
dealer, Dixon Flinders, probably had marijuana and money in his home.
Considerable testimony from the various persons present in the Poma home
failed to agree exactly on the discussion, but the persuasive evidence is that
at least appellant, Aleo, Ford, and Sharon were going to go to Flinders’
home and rob him. Whether or not it was [petitioner’s] original idea, the
group went to [petitioner’s] apartment where it is clear that a .22 caliber
handgun was obtained by [petitioner].
“Before getting the gun, the group took a man named Irwin home.
On the way there, [petitioner] mentioned “ripping somebody off” but was
quickly shut up by Aleo. [¶] Arriving at Flinders’ home the plan called for
1 Petitioner was convicted of additional offenses as described below.
2 Undesignated statutory references are to the Penal Code.
2.
Ford and Sharon Poma (then disguised with a wig) to go to the door and
gain entrance. [Petitioner] waited near the front door, out of sight, and
Aleo remained in the car, at least initially.
“Entering the house did not go as planned, and eventually
[petitioner] directed Ford to shout ‘SCDEU’ (Stanislaus County Drug
Enforcement Unit) and kick in the door. Even that did not go well for
finally [petitioner] kicked in the door. So much for “knock notice.” The
ruckus aroused Flinders who greeted the would-be robbers with a rifle in
his hands. Ford shot Flinders, killing him. Thereafter, the Flinders’ home
was searched by the entire group and items of personal property were
stolen, placed into a pillowcase, and taken to the car. Poma testified that
[petitioner] returned to the car carrying the rifle and pillowcase.
“After his arrest, [petitioner] was interviewed by the police and
eventually gave a substantially similar version of the events.
“The defense essentially confirmed the basic sequence of events
leading to Flinders’ death but contended that [petitioner] was only with
these people to purchase marijuana and had nothing whatsoever to do with
planning and executing a robbery, much less a murder.” (People v. Neal
(June 6, 1986, F002482) [nonpub. opn.].)
On March 28, 1983, a jury convicted petitioner of first degree murder (§ 187;
count I), robbery (§ 211; count II), and first degree burglary (§ 459; count III), and found,
as to each offense, that petitioner was armed with a firearm (§ 12022, subd. (a)). On
April 22, 1983, the trial court sentenced petitioner to a term of 25 years to life on count I,
plus an additional one-year term for the firearm enhancement and a three-year term for a
prior felony conviction, to be served consecutively.3 Sentence on the remaining counts
and enhancements was imposed and stayed. (§ 654.)
Petitioner appealed and, on June 6, 1986, this court reversed the three-year prior
felony enhancement but otherwise affirmed the judgment. (People v. Neal, supra,
F002482.)
3 The prior serious felony conviction had been found true in a bifurcated
proceeding.
3.
On March 29, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1170.95.4 In the form petition, petitioner stated that a complaint,
information, or indictment was filed against him that allowed him to be prosecuted under
a theory of felony murder; he was convicted of first or second degree murder at trial; and
he was not the actual killer, did not act with an intent to kill, and was not a major
participant in the underlying felony or did not act with reckless indifference to human life
in the course of the crime.
Also on March 29, 2019, the People filed a motion to dismiss the petition, arguing
section 1170.95 is unconstitutional. Additionally, the People therein argued petitioner
failed to make a prima facie showing of eligibility under section 1170.95 because
petitioner was a major participant in the underlying robbery who acted with reckless
indifference to human life. The People included with their opposition transcripts from
petitioner’s preliminary hearing and excerpts from his 2017 and 2018 parole hearings.
The court appointed counsel to represent petitioner on the petition. On August 14,
2019, petitioner’s counsel filed a reply, arguing that section 1170.95 was constitutional
and that petitioner had made a prima facie claim for relief.
The court did not issue an order to show cause or hear argument. Instead, on
May 12, 2020, the court denied the petition in a “Memorandum of Decision” (boldface &
some capitalization omitted). After quoting and summarizing this court’s opinion on
petitioner’s direct appeal, the court rejected the People’s unconstitutionality argument
and further stated:
“The Court’s review of the entire record in this case confirms that
[petitioner] is not eligible for relief under Section 1170.95 because he was a
major participant in the crimes committed against Dixon Flinders.
[Petitioner] identified Flinders to his killer – Ford. [Petitioner] showed his
4 The petition was dated January 4, 2019. It appears the petition was first sent to the
district attorney’s office, which then submitted it to the court for filing along with the
People’s response.
4.
co-participants where Flinders lived. [Petitioner] supplied the weapon used
in the robbery and suggested various ways in which the group could enter
the victim’s home – alternatively by using a woman as ‘cover’ and by
kicking down the door while yelling ‘SCDEU’. All of these facts –
established at [petitioner’s] trial and reported in the appellate opinion
affirming his conviction – show that he was a major participant in the
crimes and that he exhibited a reckless indifference to human life in
commission of those crimes.”
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
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).) The bill accomplished this task by adding three separate provisions to the
Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend
the natural and probable consequences doctrine, the bill added section 188, subdivision
(a)(3), which requires a principal to act with malice aforethought before he or she may be
convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to
amend the felony-murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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
5.
indifference to human life, as described in subdivision (d) of Section
190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.” (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(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); see also § 1170.95
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
6.
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Trial Court Prejudicially Erred
Here, the petition was adequate to meet the requirements of section 1170.95,
subdivision (b)(1). Furthermore, as the People concede, the record does not indisputably
show petitioner was ineligible for resentencing. (People v. Duchine (2021) 60
Cal.App.5th 798, 815 [“[A]bsent a record of conviction that conclusively establishes that
the petitioner engaged in the requisite acts and had the requisite intent, the trial court
should not question [the petitioner’s] evidence.”]; accord, Lewis, supra, 11 Cal.5th at
p. 971.)
7.
Although the court here acknowledged it was not permitted to weigh evidence or
make factual findings without holding a hearing, the court nonetheless proceeded to find,
based on facts set forth in this court’s opinion, that petitioner was a major participant in
the crimes and acted with reckless indifference to human life. The court apparently
believed it could make this determination as a matter of law. However, the People
concede the determination required a factual finding that was impermissible at the prima
facie stage. (Lewis, supra, 11 Cal.5th at pp. 971-972; People v. Duchine, supra, 60
Cal.App.5th at p. 815 [holding that, where the record is not dispositive of factual issues,
“the time for weighing and balancing and making findings on the ultimate issues arises at
the evidentiary hearing stage rather than the prima facie stage”].)
Because petitioner adequately alleged a prima facie claim for relief and the record
does not rebut his allegations as a matter of law, the court was required to issue an order
to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the prosecution bears
the burden of proving petitioner’s ineligibility for resentencing relief beyond a reasonable
doubt, unless such hearing is waived (§ 1170.95, subd. (d)). The court erred in failing to
follow these procedures. Neither party argues the error was harmless, and we cannot say
it is reasonably probable the petition properly could have been denied without an
evidentiary hearing on any other basis. (Lewis, supra, 11 Cal.5th at pp. 972-974; see
People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we must reverse.6
6 In addition to procedural error, petitioner argues the evidence before the court was
insufficient to support a finding that he acted with reckless indifference to human life.
We need not address this issue. On remand, the prosecution may rely on the record of
conviction or offer new or additional evidence to attempt to prove, beyond a reasonable
doubt, that petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3); accord,
Gentile, supra, 10 Cal.5th at p. 853.)
8.
DISPOSITION
The May 12, 2020 order denying petitioner’s section 1170.95 petition is reversed.
On remand, the trial court is directed to issue an order to show cause and to conduct
further proceedings as required under section 1170.95, subdivision (d).
9.