Filed 9/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299678
(Super. Ct. No. BA224537)
Plaintiff and Respondent, (Los Angeles County)
v.
JOSEPH BENTLEY,
Defendant and Appellant.
Where, as a matter of law, a defendant is not eligible for
resentencing pursuant to Penal Code section 1170.95,1 his
petition therefor, may be summarily denied. Joseph Bentley
appeals the trial court’s order denying his petition for
resentencing. He contends the trial court erred when it
summarily denied the petition without continuing it, so that his
counsel could obtain and review the transcript of his original
trial. He contends the same error deprived him of due process
and of the effective assistance of counsel. We affirm the order
denying resentencing.
1 All further statutory references are to the Penal Code.
Facts and Procedural History
In 2002, a jury convicted appellant of the first degree
murder of Alvin Green and the attempted willful, deliberate and
premeditated murders of Lenist Johnson, Jason Payne and
Devon Brown, all in a gang-related shooting. Appellant and a
codefendant confronted members of a rival gang in a shopping
center parking lot. The rival gang members quickly left in their
car. Appellant and his codefendant chased them. With appellant
driving, his co-defendant leaned out of the passenger side window
and fired 25 to 30 shots at the victims’ car. One of the bullets
struck Green in the neck, killing him. The jury also found true a
special circumstance allegation that the murder “was intentional
and perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person . . . with the intent to
inflict death.” (§190.2, subd. (a)(21).) We affirmed the conviction
in an nonpublished opinion, People v. Bentley (Jan. 21, 2004,
B163959).
In 2019, after Senate Bill No. 1437 (2017-2018 Reg. Sess.)
was enacted, appellant filed a petition for resentencing. The trial
court appointed counsel to represent him and set a briefing and
hearing schedule. The prosecutor opposed the motion
contending, that appellant was not eligible for resentencing.
Appellant’s counsel requested an extension of time in which to
reply to the opposition, and a continuance of the hearing because
he could not get a copy of appellant’s trial transcript before the
hearing date. The trial court denied both requests. It then
denied appellant’s petition and concluded that he was not eligible
for resentencing.
2
Continuance
The trial court has broad discretion to determine whether
good cause exists to continue a hearing date. (People v. Jenkins
(2000) 22 Cal.4th 900, 1037.) “Where, as here, a discretionary
power is statutorily vested in the trial court, its exercise of that
discretion ‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]’ [Citation.]” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
“In determining whether a denial was so arbitrary as to
deny due process, the appellate court looks to the circumstances
of each case and to the reasons presented for the request.
[Citations.] One factor to consider is whether a continuance
would be useful. [Citation.]” (People v. Frye (1998) 18 Cal.4th
894, 1013, disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421 (Doolin).)
The trial court did not abuse its discretion here because
neither an extension of time nor a continuance would have been
useful to appellant. As a matter of law, appellant is not eligible
for resentencing under section 1170.95 because he was not
convicted of felony murder or murder pursuant to a natural and
probable consequences theory.
Summary Denial
Section 1170.95, subdivision (a) allows a “person convicted
of felony murder or murder under a natural and probable
consequences theory” to have his or her “murder conviction
vacated and to be resentenced on any remaining counts when all
of the following conditions apply: (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
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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 . . . . (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.”
Amendments to sections 188 and 189 were enacted
simultaneously with section 1170.95. The amendments to section
188 require that a principal act with express or implied malice.
Amendments to section 189 change the definitions of first and
second degree murder. Section 189, subdivision (a) now provides,
“All . . . murder that is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person
outside of the vehicle with the intent to inflict death, is murder of
the first degree.” Subdivision (e) of section 189 provides, “A
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) 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 indifference to human life, as described in
subdivision (d) of Section 190.2.”
Here, the jury at appellant’s trial expressly found true the
special circumstance allegation that Alvin Green’s murder was
intentional and perpetrated by means of discharging a firearm
from a motor vehicle with the intent to inflict death. Appellant
drove the motor vehicle from which the firearm was discharged.
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He decided to chase the victims’ car as it drove away, which
allowed his codefendant to fire the fatal shot from the passenger
seat. When the jury found the special circumstance allegation
true with regard to appellant, it found that he aided and abetted
the shooter “with the intent to kill . . . .” (§190.2, subd. (c).) This
satisfies the mandate of section 189, subdivision (e)(2). Appellant
could properly be convicted of first degree murder even pursuant
to the recent amendments to sections 188 and 189. (§1170.95,
subd. (a)(3).)
Conclusion
We conclude that any error in not granting a continuance
was harmless because this ruling did not, and could not,
prejudice appellant. (Doolin, supra, 45 Cal.4th at p. 450.) And,
no deprivation of the right to the effective assistance of counsel is
here present.
Appellant made a choice in 2002 to engage in a vehicular
pursuit of rival gang members. This allowed his codefendant to
shoot at the fleeing rival gang members. The jury expressly
found that he did so with the intent to kill. The Legislature did
not intend that appellant should have lenity. Appellant is
fortunate that the codefendant was a poor shot. Had he killed
one other gang rival, appellant could have been facing the death
penalty.
Disposition
The judgment (order denying section1170.90 petition for
resentencing) is affirmed.
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CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Mildred Escobedo, Judge
Superior Court County of Los Angeles
______________________________
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Chalres S. Lee, Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.