People v. Benson CA3

Filed 10/9/20 P. v. Benson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089862

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2004-0009550, SF093367B) v.

JIMMY LEE BENSON,

Defendant and Appellant.

Defendant Jimmy Lee Benson appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant contends the trial court erred by summarily denying his petition after determining he failed to establish a prima facie case under the provisions of the statute. He argues the trial court must appoint counsel and allow the petition to proceed for full consideration on its merits. We

1 Undesignated statutory references are to the Penal Code.

1

agree the trial court erred in denying defendant’s petition and will remand the case for further proceedings. BACKGROUND A. Defendant’s Case In 2007 a jury found defendant guilty of one count of first degree murder (§ 187), three counts of attempted willful murder (§§ 664, 187), and one count of participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true a special circumstances allegation that the murder was committed while actively participating in a criminal street gang (§ 190.2, subd. (a)(22)), as well as firearm enhancement allegations (§ 12022.53) and criminal street gang enhancement allegations (§ 186.22, subd. (b)(1)) as to the murder and attempted murder offenses. The trial court sentenced defendant to life in prison without the possibility of parole, plus four indeterminate terms of 25 years to life, plus a determinate term of 42 years four months. On appeal, we affirmed the convictions, but identified sentencing errors. (People v. Benson (Jan. 7, 2010, C055253) [nonpub. opn.] (Benson).) Ultimately, defendant received an aggregate sentence of 124 years four months to life, plus life without the possibility of parole. In our opinion, we laid out the evidence introduced at trial. In brief, defendant and several gang members went to a birthday party that had rival gang members in attendance. After the party began to break up, party attendees, including groups of gang members, congregated in the street. Defendant and his friends had guns and fired at the homeowner and rival gang members. Four people were hit by bullets, and one person died. Defendant claimed he only fired in the air to scare people. (Benson, supra, C055253 [at pp. 3-7].) We described the prosecution’s theory at trial as follows: “The prosecution pursued a theory of guilt premised on aider and abettor liability. As explained to the jury, defendant was a member of the North Side Gangster Crips gang. He and his fellow gang members felt disrespected by the presence of a rival gang in their neighborhood. They