People v. Gooden CA4/1 ( 2021 )

Filed 3/5/21 P. v. Gooden CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077814
Plaintiff and Respondent,
v. (Super. Ct. Nos. CR61365,
SCD152560)
ALLEN B. GOODEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. George, Judge. Reversed.
Ava R. Stralla, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found defendant Allen B. Gooden guilty of first degree murder
(Pen. Code,1 § 187, count 1); burglary of an inhabited residence (§ 459, count
2); receiving stolen property (§ 496.1, count 3), but found a weapons-use
allegation untrue. The court sentenced defendant to 25 years to life for the
murder, with a concurrent term of three years for receiving stolen property,
and stayed the three-year sentence for the burglary. (§ 654, subd. (a).) This
court in People v. Gooden (Dec. 12, 1984, D000052 [nonpub. opn.] (Gooden I))
affirmed defendant’s murder and burglary convictions but vacated his
conviction for receiving stolen property.
On January 17, 2019, defendant filed in propria persona a petition for
resentencing under section 1170.95. The trial court subsequently made
findings of fact and denied the petition without an evidentiary hearing.
Defendant claims the court erred and asks for remand of the cause, directing
the trial court to issue an order to show cause and hold an evidentiary
hearing on the petition. The People agree there was error, as do we.
Reversed.
BACKGROUND
In October 1982, defendant and his wife burglarized a neighboring
apartment occupied by Olivia Rel. They had socks on their hands and carried
an elastic cord to tie up their victim. The two pretended a need to use the
telephone to persuade Rel to open the door. Once inside, defendant grabbed
Rel and stuffed socks in her mouth to prevent her from screaming. They then
tied Rel up and covered her face. Defendant’s wife then repeatedly stabbed
the victim in the neck with a pair of scissors, killing her. Defendant’s wife
took a necklace from Rel’s neck. They also took a number of items from Rel’s
home including a stereo system and television set. Before leaving, they
1 All further statutory references are to the Penal Code.
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washed their hands and cleaned up any potential fingerprints. Four days
later, defendant was arrested.
As noted, defendant in January 2019 filed under section 1170.95 a
petition for resentencing and requested appointment of counsel. The court
appointed counsel for defendant and set a briefing schedule. On February 13,
2019, the San Diego District Attorney moved to dismiss the petition, arguing
that the legal origin of section 1170.95, Senate Bill No. 1437, was
unconstitutional. The court denied the district attorney’s motion. The
district attorney brought an original consolidated proceeding in mandate
challenging this order and others, which petitions we denied in People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270. The parties then filed
briefs on the merits of defendant’s petition.
On July 16, 2020, the court denied defendant’s petition. It concluded
defendant had not made a prime facie showing he was entitled to relief
“because he was either (1) the actual killer, (2) ‘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 first degree
murder’; or, (3) ‘a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of [s]ection
190.2.’ (§ 189, subd. (e).)” The court relied on Gooden I in finding substantial
evidence showed defendant “was a major participant in the underlying
residential burglary and acted with reckless indifference to human life as
defined in [s]ection 190.2(d).”
Defendant filed a timely notice of appeal.
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DISCUSSION
When a person who has been convicted of either first or second degree
murder seeks resentencing under section 1170.95, that person must make a
prima facie showing of eligibility for resentencing. Once the person makes
such a showing, the court must issue an order to show cause and conduct an
evidentiary hearing.
Subdivision (c) of section 1170.95 provides: “The court 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. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.”
The People may either concede that relief should be granted, or
participate in a hearing where they have the burden of proving beyond a
reasonable doubt that petitioner is ineligible. At the hearing, the parties may
rely on either the record of conviction or present new evidence. (§ 1170.95,
subd. (d)(3).)
We add here that 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.” (People v. Martinez (2019) 31 Cal.App.5th 719,
723.) It accomplished this goal by amending section 188, subdivision (a)(3),
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to require all principals to murder must act with express or implied malice to
be convicted of that crime, with the exception of felony murder under section
189, subdivision (e). (Stats. 2018, ch.1015, § 2.)
We agree with the parties that by appointing counsel for defendant and
soliciting briefing, the trial court here found defendant fell within the
provisions of 1170.95 and proceeded to the second step of the process.
However, it is equally clear that the court then denied the petition based
upon a sufficiency of the evidence analysis and its own findings of fact, rather
than issuing an order to show cause and conducting an evidentiary hearing,
as mandated by statute. We agree with the parties that this was error.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed.
The case is remanded with directions to issue an order to show cause and
undertake such further proceedings as required by statute.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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