People v. Gooden CA4/1

Filed 3/5/21 P. v. Gooden CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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