People v. Bennett CA3

Filed 10/20/21 P. v. Bennett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091446

Plaintiff and Respondent, (Super. Ct. Nos. STKCRFE19880002000, v. 41511)

TAB LEE BENNETT,

Defendant and Appellant.

In June 1990, a jury found defendant Tab Lee Bennett guilty of second degree murder (Pen. Code, § 187),1 kidnapping (§ 207), and vehicle theft (Veh. Code, § 10851). The trial court sentenced defendant to an aggregate term of 20 years to life in state prison. In 1992, we remanded the matter to correct a sentencing error, reducing the sentence to 15 years to life, but otherwise affirmed the judgment. (People v. Bennett (April 27, 1992, C009700) [nonpub. opn.].)

1 Undesignated statutory references are to the Penal Code.

1

In 2019, defendant filed a petition for resentencing under newly enacted section 1170.95. The court appointed counsel, the People filed an informal response, and defendant replied. After reviewing the court records, the trial court denied defendant’s petition. Defendant timely appealed and now contends the trial court erred by conducting “fact finding” at the “prima facie stage of review,” and denying his petition without conducting an evidentiary hearing. The People concede the issue and agree the matter should be remanded for further proceedings. For the reasons stated below, we accept the People’s concession. PROCEDURAL BACKGROUND A. Defendant’s Petition On January 4, 2019, defendant filed a petition for resentencing pursuant to section 1170.95 and attached his own declaration. In his declaration, defendant checked the boxes to indicate (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) at trial, he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and (3) he could not be convicted of first or second degree murder under the changes to sections 188 and 189. Defendant also requested counsel be appointed for “the re-sentencing process.” The People filed an informal response, opposing defendant’s petition, and attached a request for judicial notice seeking judicial notice of the trial transcript, this court’s decision in the direct appeal from the judgment, relevant statutory history, and defendant’s prison disciplinary record. Defendant, through counsel, filed a reply to the People’s opposition, and the People subsequently filed a supplemental response in opposition.