People v. Harless CA1/3

Filed 3/3/23 P. v. Harless CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A164187

v. (Del Norte County BENJAMIN ISAAC HARLESS, Super. Ct. Nos. CRF1998572, CRF980572) Defendant and Appellant.

MEMORANDUM OPINION1 Appellant Benjamin Harless filed a Petition for Resentencing pursuant to former Penal Code section 1170.95, in which he adequately alleged by checking boxes on a form that he was entitled to resentencing relief under the statute, since renumbered as Penal Code section 1172.6 (section 1172.6). Appellant’s petition also requested appointment of counsel to represent him during resentencing. Without appointing counsel, the trial court denied the petition. We reverse. In November 1997, while still a minor, appellant participated in a felony murder in which somebody brutally beat an elderly man about the

We resolve this case by a memorandum opinion pursuant to 1

California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.)

1

head with a baseball bat in his own home, causing the man’s death. There is considerable evidence that appellant was the person who wielded the bat. For example, another minor who entered the victim’s home with appellant to commit the robbery so testified, during a preliminary hearing for his aunt, who was accused of having set the crime in motion. But appellant contradicted this account, telling police the other minor was the one who wielded a bat. The discrepancy in these two accounts was never put before a jury. After appellant was certified as fit to stand trial in adult court, he pleaded guilty to second-degree murder and robbery in exchange for an agreement to testify truthfully against an adult codefendant. The parties stipulated that evidence from appellant’s fitness hearing provided a factual basis for the plea. This evidence included the transcript of the preliminary hearing for the adult codefendant. After the plea, a probation report was prepared containing what appellant’s counsel described at sentencing as a “condensed version of the testimony of” the juvenile coparticipant from his aunt’s preliminary hearing. Counsel stated, “this is not the version of the facts that has been recounted by [Appellant] to the District Attorney as part and parcel of his plea bargain . . . . In fact, [Appellant’s] testimony is that he left his bat outside, . . . and actually [the juvenile coparticipant] was the individual who struck the blows” that killed the victim. The district attorney confirmed the accuracy of counsel’s characterization of his client’s statement. The trial court sentenced appellant to a prison term of 15 years to life, with a nine-year concurrent term for the robbery. In a direct appeal under People v. Wende (1979) 25 Cal.3d 436, another division of this court affirmed the judgment. (People v. Harless (Mar. 22, 1999, A083292) [nonpub. opn.]