People v. Behnke CA4/1

Filed 6/30/23 P. v. Behnke CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080808

Plaintiff and Respondent,

v. (Super. Ct. No. SCD183245)

SCOTT RAYMOND BEHNKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Reversed; remanded with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

In 2006, a jury convicted Scott Raymond Behnke of first degree murder

(Pen. Code,1 § 187, subd. (a)) and found true that he used a knife in the commission of that crime (§ 12022, subd. (b)(1)). The court sentenced Behnke to prison for 25 years to life for the murder conviction plus an additional year for the knife enhancement. We affirmed the judgment in an unpublished opinion. (See People v. Behnke (Mar. 14, 2008, D049282).) In 2019, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) sent the superior court a letter noting Behnke’s commendable behavior and accomplishments in prison. The Secretary recommended that the court recall Behnke’s sentence and resentence Behnke to a lesser term under section 1172.1. Following briefing from the parties, the superior court declined to resentence Behnke, explaining that absent the prosecution’s assent, it lacked discretion to reduce the first degree murder conviction and impose a lesser sentence. Behnke appeals, arguing the superior court erred (1) in determining that a “blanket exclusion” exists under section 1172.1 prohibiting a court from resentencing a person convicted of murder upon receiving a CDCR recommendation for resentencing and (2) failing to consider whether the enhancement could be stricken. We agree that the court had the discretion to strike the enhancement and resentence Behnke accordingly. Further, it does not appear on the record that the court properly considered this option. As such, we remand this matter to allow the superior court to consider the CDCR’s recommendation and whether the enhancement should be stricken. Further, we agree with the parties that the superior court was correct that it