People v. Stone CA5

Filed 9/30/16 P. v. Stone 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F072002 Plaintiff and Respondent, (Super. Ct. No. VCF109275C-03) v.

NEIL EDWARD STONE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.†

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Poochigian, Acting P.J., Kane, J. and Franson, J. †Retired judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

The trial court denied Neil Edward Stone’s motion for appointment of counsel and postconviction DNA testing pursuant to Penal Code section 1405.1 Because this was the second such motion filed by Stone, the trial court had discretion to grant or deny the motion. (§ 1405, subd. (b)(3)(B).) We conclude the trial court did not abuse its discretion and affirm the order denying the motion. FACTUAL AND PROCEDURAL SUMMARY2 In 2005, Stone was convicted of murder during the commission of a burglary or robbery (§§ 187, 190.2, subd. (a)(17)), home invasion robbery while acting in concert with others (§§ 211, 213, subd. (a)(1)(A)), first degree burglary (§ 459), and destruction of evidence (§ 135). The jury also found true the allegation that Stone personally used a dangerous and deadly weapon in the murder and home invasion counts. (§ 12022, subd. (b)(1).) Stone was sentenced to life in prison without the possibility of parole on the murder count, a consecutive one year for the weapon enhancement, and a concurrent determinate term of 12 years on the remaining counts. The victim, Robert Trejo, sold drugs out of his home. He was found on his bed, alive but not responsive. He was pronounced brain dead at the hospital within a few days. The autopsy revealed numerous injuries to Trejo’s head and body. The cause of death was cardiorespiratory arrest as a result of the severe injuries to Trejo’s head. An anonymous phone call led detectives to codefendant Dana Wilson, who provided a statement to the police implicating Stone and others. Stone was interviewed by the police. Stone initially denied participating in the murder, but when told his accomplices had implicated him, Stone admitted that he agreed to a plan to beat Trejo over some slight and steal his drugs from him. However, Stone did not intend to kill