People v. Harless CA1/3

Filed 3/3/23 P. v. Harless CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A164187
v. (Del Norte County
BENJAMIN ISAAC HARLESS, Super. Ct. Nos. CRF1998572,
CRF980572)
Defendant and Appellant.
MEMORANDUM OPINION1
Appellant Benjamin Harless filed a Petition for Resentencing pursuant
to former Penal Code section 1170.95, in which he adequately alleged by
checking boxes on a form that he was entitled to resentencing relief under the
statute, since renumbered as Penal Code section 1172.6 (section 1172.6).
Appellant’s petition also requested appointment of counsel to represent him
during resentencing. Without appointing counsel, the trial court denied the
petition. We reverse.
In November 1997, while still a minor, appellant participated in a
felony murder in which somebody brutally beat an elderly man about the
We resolve this case by a memorandum opinion pursuant to
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California Standards of Judicial Administration, section 8.1. (See also People
v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)
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head with a baseball bat in his own home, causing the man’s death. There is
considerable evidence that appellant was the person who wielded the bat.
For example, another minor who entered the victim’s home with appellant to
commit the robbery so testified, during a preliminary hearing for his aunt,
who was accused of having set the crime in motion. But appellant
contradicted this account, telling police the other minor was the one who
wielded a bat. The discrepancy in these two accounts was never put before a
jury.
After appellant was certified as fit to stand trial in adult court, he
pleaded guilty to second-degree murder and robbery in exchange for an
agreement to testify truthfully against an adult codefendant. The parties
stipulated that evidence from appellant’s fitness hearing provided a factual
basis for the plea. This evidence included the transcript of the preliminary
hearing for the adult codefendant. After the plea, a probation report was
prepared containing what appellant’s counsel described at sentencing as a
“condensed version of the testimony of” the juvenile coparticipant from his
aunt’s preliminary hearing. Counsel stated, “this is not the version of the
facts that has been recounted by [Appellant] to the District Attorney as part
and parcel of his plea bargain . . . . In fact, [Appellant’s] testimony is that he
left his bat outside, . . . and actually [the juvenile coparticipant] was the
individual who struck the blows” that killed the victim. The district attorney
confirmed the accuracy of counsel’s characterization of his client’s statement.
The trial court sentenced appellant to a prison term of 15 years to life, with a
nine-year concurrent term for the robbery. In a direct appeal under People v.
Wende (1979) 25 Cal.3d 436, another division of this court affirmed the
judgment. (People v. Harless (Mar. 22, 1999, A083292) [nonpub. opn.]
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(Harless I).) The facts above are drawn from Harless I and from the record
prepared for that appeal.
In August 2021, appellant filed his petition for resentencing, averring
each of the elements of a section 1172.6 claim and requesting appointment of
counsel. In a written order dated October 21, 2021, the trial court denied
both the petition and the request for counsel. The trial court explained it had
reviewed documents in the case—the evidence from the fitness hearing, the
probation report, and the decision of this court in Harless I—and had
“absolutely no doubt that the defendant personally used a baseball bat to
bludgeon[] to death a 70-year-old man.” Appellant was therefore “not correct”
in alleging “that he could not have been convicted of murder because of recent
change to the felony murder rule.” This timely appeal followed.
Citing People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis), appellant
contends the court erred in denying his petition without first appointing
counsel. Lewis holds “petitioners are entitled to the appointment of counsel
upon the filing of a facially sufficient petition (see [former Pen. Code,]
§ 1170.95, subds. (b), (c)), and that only after the appointment of counsel and
the opportunity for briefing may the superior court consider the record of
conviction to determine whether ‘the petitioner makes a prima facie showing
that he or she is entitled to relief.’ ” (Id. at p. 957.) The Attorney General
does not contest the facial sufficiency of appellant’s petition, nor that the trial
court erred in denying appellant’s petition without first appointing counsel.
Instead, the Attorney General contends any error was harmless
because the record of conviction “readily refutes appellant’s claim that he
made a prima facie showing for relief.” But the Attorney General supports
this assertion only with a recitation of facts from Harless I, an account
drawn, in turn, from sources that include the coparticipant’s testimony at his
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aunt’s preliminary examination. We conclude the factual recitation in the
appellate opinion is an insufficient basis to refute appellant’s claim that he
had made out a prima facie case.
As our Supreme Court instructs in Lewis, “the prima facie inquiry
under [section 1172.6,] subdivision (c) is limited.” (Lewis, supra, 11 Cal.5th
at p. 971.) The court must take the petitioner’s factual allegations as true,
not rejecting them on credibility grounds without first conducting an
evidentiary hearing, unless the record “ ‘ “contain[s] facts refuting the
allegations made in the petition.” ’ ” (Ibid.) Such facts may be found in “ ‘ the
court’s own documents,’ ” and the trial court may consider an appellate
opinion where it contains useful information. (Ibid.) But “a trial court
should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972, quoting People v. Drayton (2020) 47
Cal.App.5th 965, 980, abrogated on another ground in Lewis, at pp. 961–963.)
Without an evidentiary hearing, the trial court’s authority to make factual
determinations “is limited to readily ascertainable facts from the record (such
as the crime of conviction).” (Drayton, at p. 980.) The court may not decide
contested facts without a hearing, even when it believes the record leaves
“absolutely no doubt” that such facts are true.
Here, the trial court engaged in just such premature factfinding. The
court concluded, based on the evidence in the record before it, that appellant
was the assailant who beat the victim with a baseball bat, killing him. If the
trial court reaches this conclusion after counsel for appellant is appointed,
briefing occurs and, if warranted, an evidentiary hearing is held, then relief
under section 1172.6 will be properly denied. But based on the record before
us at this early stage in the proceedings, we conclude “ ‘ “it is reasonably
probable that if [appellant] had been afforded assistance of counsel his . . .
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petition would not have been summarily denied without an evidentiary
hearing.” ’ ” (Lewis, supra, 11 Cal.5th at p. 974.) Appellant has, accordingly,
established prejudice under the standard of People v. Watson (1956) 46 Cal.2d
818, which applies here. (Lewis, supra, 11 Cal.5th at pp. 957–958, 974.)
DISPOSITION
The trial court’s order of October 21, 2021 is reversed, and the matter is
remanded with directions to appoint counsel for appellant and, after briefing,
consider anew his petition for resentencing.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
People v. Harless (A164187)
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