People v. Simpson CA3

Filed 1/10/24 P. v. Simpson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C098238

Plaintiff and Respondent, (Super. Ct. No. 93F03862)

v.

BENITO SIMPSON,

Defendant and Appellant.

Defendant Benito Simpson appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Appointed counsel for defendant asks this court to conduct an independent review of the record to determine whether there any arguable issues on appeal, and defendant has filed a supplemental brief. (People v.

1 Undesignated statutory references are to the Penal Code. Defendant filed his petition under former section 1170.95. Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) amended section 1170.95, effective January 1, 2022. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) This opinion refers to section 1172.6.

1

Wende (1979) 25 Cal.3d 436; People v. Delgadillo (2022) 14 Cal.5th 216.) We have considered defendant’s supplemental brief, and we affirm the trial court’s order. BACKGROUND In 1994, a jury found defendant guilty of first degree murder. The jury also found true that defendant personally used a firearm. The trial court sentenced defendant to 25 years to life plus a consecutive eight-year term for use of a firearm and three years for a prior prison term. This court affirmed the judgment. (People v. Benito Simpson (May 28, 1996, C018331) [nonpub. opn.].) In May 2022, defendant filed a form petition for resentencing under section 1172.6. Defendant checked boxes alleging he was convicted of murder under the felony- murder rule or natural and probable consequences doctrine and could not be so convicted today under the changes made to sections 188 and 189, effective January 1, 2019. The court appointed counsel for defendant. The People opposed the petition, arguing that the appellate opinion, the jury instructions, and the jury’s findings established that defendant was not convicted under the felony-murder doctrine or natural and probable consequences doctrine, and further that as the actual perpetrator defendant would still be convicted under the amendments to sections 188 and 189. People attached this court’s opinion on direct appeal and copies of the jury instructions taken from the appellate record. Defendant filed a reply to the People’s opposition, arguing that he had made a prima facie showing he was entitled to relief and moving to strike factual statements taken from our opinion as hearsay and prohibited by the amendments to section 1172.6 made by Senate Bill 775. At the hearing on defendant’s resentencing petition, the trial court concluded it could not consider jury instructions obtained from the appellate record. The trial court ruled that defendant was entitled to an evidentiary hearing and issued an order to show cause.