People v. Harless CA3

Filed 6/17/24 P. v. Harless CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099672

Plaintiff and Respondent, (Super. Ct. No. 98F06291)

v.

BENJAMIN HARLESS,

Defendant and Appellant.

In April 1998, as a juvenile, defendant Benjamin Harless was convicted of robbery and second degree murder and received a sentence of 15 years to life in prison. Almost a year later, a jury found defendant guilty of threatening a witness and terrorist threats. The trial court sentenced defendant to 25 years to life.

In 2023, the trial court denied defendant’s petition for resentencing filed pursuant to Penal Code section 1170, subdivision (d)(1) (unless otherwise stated, statutory section citations that follow are to the Penal Code) because defendant had not been sentenced to life without parole and his sentence was not the functional equivalent of life without parole. On appeal, defendant argues the trial court erred in this determination. He further

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argues we should order the trial court to hold a hearing pursuant to section 3051. We affirm the trial court’s order.

FACTS AND HISTORY OF THE PROCEEDINGS This case arises from defendant’s two prior convictions as a juvenile. Defendant was born in 1981. In December 1997, at the behest of a third person, defendant went to the 70-year-old victim’s home to collect on a $50 debt owed to that third person. The third person also instructed defendant to teach the victim a lesson. Doing as instructed, when he went to collect the debt, defendant repeatedly hit the victim in the head with a metal baseball bat brutally killing him. He then stole a gun and jewelry and set the victim’s home on fire. Defendant was convicted of second degree murder and robbery (§§ 187, 212.5) and the trial court sentenced defendant to 15 years to life on the count charging murder with a nine-year concurrent sentence for the robbery. In 1998, defendant was in a courthouse holding cell waiting to testify in a murder trial. When he saw the victim of the threats and intimidation charges later brought against him, defendant started shouting loud and angry threats at her, “Bitch! You testify and I’ll kill you! You testify and I’ll kill your family.” Later when the officers returned to his cell, defendant was still extremely agitated and yelled he was not afraid of them. Defendant said, “I heard [the victim] crying, was she? Good, I hope so, she deserves it, the bitch.” A jury convicted defendant of threatening a witness and terrorist threats. (§§ 136.1, subd. (c), 422.) The trial court sentenced defendant to three strike sentences of 25 years to life (§§ 667, subds. (b)-(i), 1170.12) for each count but stayed the sentence on the terrorist threats pursuant to section 654. The trial court ordered the new sentence to be served consecutive to his existing 15-year-to-life sentence. In 2023, defendant filed a petition seeking to have his sentence recalled and for a new sentencing hearing pursuant to section 1170, subdivision (d)(1). The trial court