People v. Bennett CA3 ( 2021 )

Filed 10/20/21 P. v. Bennett CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091446
Plaintiff and Respondent, (Super. Ct. Nos.
STKCRFE19880002000,
v. 41511)
TAB LEE BENNETT,
Defendant and Appellant.
In June 1990, a jury found defendant Tab Lee Bennett guilty of second degree
murder (Pen. Code, § 187),1 kidnapping (§ 207), and vehicle theft (Veh. Code, § 10851).
The trial court sentenced defendant to an aggregate term of 20 years to life in state prison.
In 1992, we remanded the matter to correct a sentencing error, reducing the sentence to
15 years to life, but otherwise affirmed the judgment. (People v. Bennett (April 27, 1992,
C009700) [nonpub. opn.].)
1 Undesignated statutory references are to the Penal Code.
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In 2019, defendant filed a petition for resentencing under newly enacted section
1170.95. The court appointed counsel, the People filed an informal response, and
defendant replied. After reviewing the court records, the trial court denied defendant’s
petition.
Defendant timely appealed and now contends the trial court erred by conducting
“fact finding” at the “prima facie stage of review,” and denying his petition without
conducting an evidentiary hearing. The People concede the issue and agree the matter
should be remanded for further proceedings. For the reasons stated below, we accept the
People’s concession.
PROCEDURAL BACKGROUND
A. Defendant’s Petition
On January 4, 2019, defendant filed a petition for resentencing pursuant to section
1170.95 and attached his own declaration. In his declaration, defendant checked the
boxes to indicate (1) a complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine, (2) at trial, he was convicted of first or
second degree murder pursuant to the felony-murder rule or the natural and probable
consequences doctrine, and (3) he could not be convicted of first or second degree
murder under the changes to sections 188 and 189. Defendant also requested counsel be
appointed for “the re-sentencing process.”
The People filed an informal response, opposing defendant’s petition, and attached
a request for judicial notice seeking judicial notice of the trial transcript, this court’s
decision in the direct appeal from the judgment, relevant statutory history, and
defendant’s prison disciplinary record. Defendant, through counsel, filed a reply to the
People’s opposition, and the People subsequently filed a supplemental response in
opposition.
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B. The Trial Court Order
At the hearing on defendant’s petition, the trial court acknowledged the matter was
on “for a prima facie ruling.” Defendant’s counsel argued defendant was convicted of
felony murder and the record of conviction did not establish as a matter of law that he
acted with reckless indifference to human life. The People, on the other hand, argued the
evidence established defendant was (if not the actual killer) a direct aider and abettor in
the murder, and was not entitled to relief as a matter of law.
The trial court found the People’s argument more compelling. The court looked
“back through the testimony” and this court’s decision on appeal and found there was
evidence that defendant was “actively involved in the kidnapping . . . with the intent to
commit murder.” Moreover, the court found that regardless of whether defendant was
the actual killer, he did aid and abet in the killing. Thus, the court found defendant failed
to make a prima facie case that he was entitled to relief and denied his petition.
DISCUSSION
Defendant contends the trial court erred by denying his petition without issuing an
order to show cause and conducting an evidentiary hearing. He argues his petition
contained the necessary allegations under section 1170.95, subdivision (b)(1), and the
court erred by engaging in fact-finding during the prima facie stage of the proceedings.
The People concede the issue.
We agree the trial court erred by denying defendant’s petition without issuing an
order to show cause and conducting the required evidentiary hearing.
A. Legal Background
“Under prior California law, a defendant who aided and abetted a crime, the
natural and probable consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder. (People v. Chiu (2014) 59 Cal.4th 155,
161.) This was true irrespective of whether the defendant harbored malice aforethought.
Liability was imposed ‘ “for the criminal harms [the defendant] . . . naturally, probably,
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and foreseeably put in motion.” [Citations.]’ (Id. at pp. 164-165, italics omitted.)” (In re
R.G. (2019) 35 Cal.App.5th 141, 144.)
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018
Reg. Sess.). Senate Bill No. 1437 was enacted 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).) Effective January 1,
2019, the legislation amended sections 188 and 189.
Senate Bill No. 1437 also authorized, through new section 1170.95, an individual
convicted of felony murder or murder based on the natural and probable consequences
doctrine, to petition the sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted of murder because of
Senate Bill No. 1437’s changes to the definition of the crime. (See People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 843.)
Our Supreme Court recently held that in order to determine whether the petitioner
has made the requisite prima facie showing in their petition, the trial court may examine
the record of conviction. (Lewis, supra, 11 Cal.5th at p. 971.) Thus, “allowing the court
to distinguish petitions with potential merit from those that are clearly meritless.” (Ibid.)
Nevertheless, “the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court takes
petitioner’s factual allegations as true and makes a preliminary assessment regarding
whether the petitioner would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.” ’ . . . ‘However, if the
record, including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a credibility determination
adverse to the petitioner.” ’ ” (Ibid.)
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Once the section 1170.95, subdivision (c) prima facie showing has been made, the
court must issue an order to show cause and hold an evidentiary hearing to determine
whether to vacate the murder conviction and resentence the petitioner on any remaining
counts. (§ 1170.95, subd. (d)(1).) At the hearing the prosecution has the burden of
proving beyond a reasonable doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).) The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective burdens. (See
People v. Gentile, supra, 10 Cal.5th at pp. 853-854.)
B. Analysis
Here, the trial court denied defendant’s petition after reviewing the trial transcript
and this court’s opinion on appeal. The trial court determined on its own that the facts
presented in those documents were sufficient to establish that defendant was not entitled
to resentencing under section 1170.95 as a matter of law because defendant was either the
actual killer or he aided and abetted the actual killer. Defendant had, however, already
made the required prima facie showing in his petition. As the People acknowledge, the
finding made by the trial court went beyond the preliminary review required to determine
whether the allegations establishing the prima facie showing were accurate. Accordingly,
the trial court’s summary denial of defendant’s petition was error. (Lewis, supra,
11 Cal.5th at p. 971.)
We agree with both parties that the case should be remanded for further
proceedings in compliance with section 1170.95.
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DISPOSITION
The trial court’s postconviction order denying defendant’s resentencing petition is
reversed and the matter is remanded with directions to proceed in accordance with the
requirements of section 1170.95.
\s\
Blease, Acting P. J.
We concur:
\s\
Robie, J.
\s\
Duarte, J.
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